PROCEEDINGS 

f 

OF  THE' 

* 

VIRGINIA  ASSEMBLY, 

.  -  ■:[  f  a  ,  . 

<*N  T  it  B 

\  <  :  /  % 

ANSWERS  OF  SUNDRY  STATED 

to  THEIR 

RESOLUTIONS, 
Passed  in  December,  1798, 


PHILADELPHIA: 

.PRINTED  BY  JAMES  CAREY,  No.  f,  SOUTH  ERONT-STREST. 


PROCEEDINGS,  &c. 


VIRGINIA. 

IN  THE  HOUSE  OF  DELEGATES. 

T UESDAY,  jAMUARr  7,  1800. 

rn 

-L  HE  Houfe,  according  to  the  order  of  the  day,  refolved  it~ 
felf  into  a  committee  of  the  whole  Houfe,  on  the  report  of 
the  committee  to  whom  was  committed  the  proceedings  of 
fundry  of  the  other  ftates  in  aufwer  to  the  refolutions  of  the 
General  Affembly  of  the  21ft  day  of  December  1798,  and 
after  fome  time  fpent  therein,  Mr.  Speaker  refumed  the 
•chair,  and  Mr.  Mercer  reported,  that  the  committee  of  the 
whole  Houfe  had,  according  to  order,  had  the  faid  report 
under  their  confideration,  and  had  made  an  amendment 
thereto,  which  he  read  in  hk  place,  and  then  delivered  in  at 
the  clerk's  table,  where  the  fame  was  again  twice  read,  and 
agreed  to  by  the  houfe. 

The  faid  report  as  amended,  is  as  follows  : 

"Whatever  room  might  be  found  in  the  proceedings  of 
fome  of  the  ftates,  who  have  difapproved  of  the  refolutions 
of  the  General  Affembly  of  this  commonwealth,  paffed  on 
the  2 1  ft  day  of  December,  1798,  for  painful  remarks  on  the 
fpirit  and  manner  of  thofe  proceedings,  it  appears  to  the  com¬ 
mittee,  molt  confident  with  the  duty,  as  well  as  dignity  of 
the  General  Affembly,  to  haften  an  oblivion  of  every  circum- 
ftancc,  which  might  be  conftrued  into  a  diminution  of  mutual 
refpeft,  confidence  and  affection,  among  the  members  cf 
&he  union. 


x  4  y 

The  committee  have  deemed  it  a  more  ufeful  ta&,  to  re* 
vife  with  a  critical  eye,  the  refoluitions  which  have  met  with 
this  difapprobation  ;  to  examine  fully  the  feveral  objections 
and  arguments  which  have  appeared  againft  them ;  and  to 
enquire,  whether  there  be  any  errors  of  fa£t,  of  principle,  or 
pf  reafoning,  which  the  candour  of  the  General  Aflembly 
ought  to  acknowledge  and  correct. 

The  firft  of  the  resolutions  is  in  the  words  following : 

Refolved ,  that  the  General  Affembly  of  Virginia ,  doth  unequi - 
•vocally  exprefs  a  firm  refolution  to  maintain  and  defend  the  Conjii - 
tut  ion  of  the  United  States,  and  the  Confitutim  of  this  fatex 
egainfil  every  aggrfifion  either  foreign  or  dotnefic ,  and  that  they 
•will  fupport  the  government  cf  the  United  States,  in  all  meafurei 
\ war  ranted  by  the  former . 

No  unfavourable  comment  can  hare  been  made  on  th© 
fentiment$  here  exprefied.  To  maintain  and  defend  the 
Conftitution  of  the  United  States,  and  of  their  own  ftate, 
againft  every  aggreflion  both  foreign  and  domeftic,  and  to 
fupport  the  government  of  the  United  States  in  all  meafures 
warranted  by  their  Conftitution,  are  duties,  which  the  General 
Affembly  ought  always  to  feel,  and  to  which  on  luch  art 
occafion,  it  was  evidently  proper  to  exprefs  their  fincere  and 
€rm  adherence. 

In  their  next  refohition-^Sn&e  General  Affembly  mf  folemnly 
declares  a  warm  attachment  to  the  union  of  the  fates ,  to  main¬ 
tain  which ,  it  pledges  all  its  penvers  ;  and  that  for  this  end ,  it  is 
their  duly  to  watch  over  and  ofpofc  every  infraction  of  thofe  prin- 
eiples ,  which  confitute  the  only  bafis  of  that  union ,  becaufe  a  faithful 
ebfer  vance  of  than ,  can  alone  fecure  its  ex  fence  and  the  public 
happinefs. 

The  obfervarion  juft  mad©  is  equally  applicable  to  this 
folemn  declaration,  of  warm  attachment  to  the  union,  and 
this  folemn  pledge  to  maintain  it  *,  nor  can  any  queftion  arife 
among  enlightened  friends  of  the  union,  as  to  the  duty  of 
watching  over  and  oppofmg  every  infraClion  of  thofe  prin¬ 
ciples  which  conftitute  its  bails,  and  a  faithful  obfervance  of 
which,  can  alone  fecure  its  exiftence,  and  the  public  happin 
nefs  thereon  depending. 

The  third  refolution  is  in  the  v/ords  following : 

d  hat  this  Affembly  doth  explicitly  and  peremptorily  declare ,  that 
it  views  the  powers  cf  the  Federal  Government’ ,  as  refulting  from 
the  compact ,  to  which  the  fates  are  parties ,  as  limited  by  the  plain 
fenfe  and  intention  of  the  inf  rumen  t  conflicting  that  compaB  ;  as 
no  farther  valid  than  they  are  authorifd  by  the  grants  enumerated 
in  that  compaB ;  and  that  in  cafe  of  a  deliberate ,  palpable  and 
dangerous  exercife  of  other  powers ,  not  granted  by  the  faid  compaB \ 


(  5  ) 

the  fates  who  are  parties  thereto ,  have  the  rights  and  are  in  ditty 
bound ,  to  interpofe  for  arrefing  the  progrefs  of  the  evil,  and  for 
maintaining  within  their  refpeBive  limits ,  the  authorities ,  rights 
and  liberties  appertaining  to  them. 

On  this  refolution,  the  committee  have  beftowed  all  the 
attention  which  its  importance  merits:  They  have  (canned 
it  not  merely  with  a  drift,  but  with  a  fevere  eye ;  and  they 
feel  confidence  in  pronouncing,  that  in  its  juft  and  fair 
conftruchon,  it  is  unexceptionably  true  in  its  feveral  por¬ 
tions,  as  well  as  cenflirutional  and  conclufive  in  its  inferences. 

1  he  refolution  declares,  ff,  that  u  it  views  the  powers 
of  the  Federal  Government,  as  refulting  from  the  compaft 
to  which  the  dates  are  parties,”  in  other  words,  that  the 
federal  powers  are  derived  from  the  Conftitution,  and  that 
the  Conftitution  is  a  compaft  to  which  the  dates  are  parties. 

Clear  as  the  petition  mud  feem,  that  the  federal  powers 
are  derived  from  the  Conftitution,  and  from  that  alone,  th« 
committee  are  not  unapprized  of  a  late  doctrine  which 
opens  another  fource  of  federal  powers,  not  lefs  extentive 
and  important,  than  it  is  new  and  unexpected.  The  exa¬ 
mination  of  this  doftrine  will  be  rnoft  conveniently  con¬ 
nected  with  a  review  of  a  fucceeding  refolution.  The  com- 
mince  fatisfy  themfelvcs  here  with  briefly  remarking,  that  in 
all  the  co-temporary  difeuflions  and  comments,  which  tbs 
Conftitution  underwent,  it  was  conftantly  juftihed  and  re¬ 
commended  on  the  ground,  that  the  powers  not  given  to  the 
government,  were  withheld  from  it ;  and  that  if  any  douhi 
could  have  exifted  on  this  fubjeft,  under  the  original  text  of 
the  Conftitution,  it  is  removed  as  far  as  words  could  remove 
it,  by  the  I2th  amendment,  now  a  part  of  the  Conftitution, 
which  exprefsly  declares,  “  that  the  powers  not  delegated 
to  the  United  States,  by  the  Conftitution,  nor  prohibited 
“  by  it  to  the  ftates,  are  referved  to  the  ftates  refpeftively, 
or  to  the  people.’* 

The  other  pofition  involved  in  this  branch  of  the  refolu¬ 
tion,  namely,  u  that  the  ftates  are  parties  to  the  Conftitution 
or  compaft,”  is  in  the  judgment  of  the  committee,  equally 
free  from  objection.  It  is  indeed  true  that  the  term  ftates,” 
is  fometimes  ufed  in  a  vague  fenfe,  and  fometimes  in  dif¬ 
ferent  fenfes,  according  to  the  fubjeft  to  which  it  is  applied. 
Thus  it  fometimes  means  the  feparate  feftions  of  territory 
occupied  by  the  political  focieties  within  each ;  fometimes 
the  particular  governments,  eftaklifhed  by  thofe  focieties  ; 
fometimes  thofe  focieties  as  organized  into  thofe  particular 
governments*,  and  laltly,  it  means  the  people  compofmg 
ihofe  political  focieties,  in  their  higheft  fovereign  capacity. 


c  «  r  ■  ig  m 

Although  it  might  he  wilhed  that  the  perfedlion  oflanguage 
admitted  lefs  diver fity  in  the  fignification  of  the  fame  words* 
yet  little  inconveniency  is  produced  by  it,  where  the  true 
i'enfe  can  be  collected  with  certainty  from  the  different  ap¬ 
plications.  In  the  prefent  indancc  whatever  different  con- 
drudlions  of  the  term  4£  Rates,”  in  the  refolution  may  have 
been  entertained,  all  will  at  lead  concur  in  that  lad  men¬ 
tioned  ;  becaufe  in  that  fenfe,  the  Conditution  was  fubmitted 
to  the  “  dates  In  that  fenfe  the  4£  dates”  ratified  it ;  and 
in  that  fenfe  of  the  term  44  dates,”  they  are  confequently 
parties  to  the  compadi  from  which  the  powers  of  the  Federal 
Government  refult. 

The  next  pofition  is,  that  the  General  AfTembly  views  the 
powers  of  the  Federal  Government,  £4  as  limited  by  the  plain 
fenfe  and  intention  of  the  indrument  condituting  that  com¬ 
pact, ”  and  ^  as  no  farther  valid  than  they  are  authorized  by 
the  grants  therein  enumerated.”  It  does  not  feem  podible 
that  any  jud  objection  can  He  againft  either  of  thefe  claufes. 
The  fird  amounts  merely  to  a  declaration  that  the  compact 
ought  to  have  the  interpretation,  plainly  intended  by  the 
parties  to  it ;  the  other,  to  a  declaration,  that  it  ought  to 
have  the  execution  and  ededl  intended  by  them.  If  the 
powers  granted,  be  valid,  it  is  folely  becaufe  they  arc 
granted  ;  and  if  the  granted  powers  are  valid,  becaufe 
granted,  all  other  powers  not  granted,  mud  not  be  valid* 

The  refolution  having  taken  this  view  of  the  federal 
compact,  proceeds  to  infer,  44  that  in  cafe  of  a  deliberate, 
palpable,  and  dangerous  exercife  of  other  powers  not  granted 
by  the  laid  compact,  the  dates  who  are  parties  thereto,  have 
the  right,  and  are  in  duty  bound  to  interpofe  for  arreding  the 
progrefs  of  the  evil,  and  for  maintaining  within  their  ref- 
pedtive  limits,  the  authorities,  rights  and  liberties  apper¬ 
taining  to  them.” 

It  appears  to  your  committee  to  be  a  plain  principle, 
founded  in  common  fenfe,  illustrated  by  common  pradlice, 
and  efiential  to  the  nature  of  compadls ;  that  where  refort 
can  be  had  to  no  tribunal  fuperior  to  the  authority  of  the 
parties,  the  parties  themfelves  mud  be  the  rightful  judges  in 
the  lad  refort,  whether  the  bargain  made,  has  been  purfued 
or  violated.  The  conditution  of  the  United  States  was 
formed  by  the  function  ol  the  dates,  given  by  each  in  its  fo- 
vereign  capacity.  It  adds  to  the  liability  and  dignity,  as 
well  as  to  the  authority  the  Conditution,  that  it  reds  on 
this  legitimate  and  folid  foundation.  The  dates  then  being 
the  parties  to  the  Conditutional  compadl,  and  in  their  fovc- 
sreign  capacity,  it  follows  of  needfity,  that  there  can  be 


(  7  ) 

tribunal  above  their  authority,  to  decide  in  the  laft  refort, 
whether  the  compad  made  by  them  be  violated  j  and  confe- 
quently  that,  as  the  parties  to  it,  they  muft  themfelves  decide 
in  the  laft  refort,  fuch  queftions  as  may  be  of  fufficient  mag-* 
hitude  to  require  their  interpofition. 

It  does  not  follow,  however,  that  becaufe  the  ftates,  as 
fovercigri  parties  to  their  conftitutional  compact,  muft  ulti¬ 
mately  decide  whether  it  has  been  violated,  that  fuch  a  dc- 
cifion  ought  to  be  interpofed  either  in  a  hafty  manner,  or  on 
doubtful  and  inferior  occafions.  Even  in  the  cafe  of  ordinary 
conventions  between  different  nations,  where,  by  the  ftridfe 
frule  of  interpretation,  a  breach  of  a  part  may  be  deemed  a> 
breach  of  the  whole  y  every  part  being  deemed  a  condition 
Of  every  other  part,  and  of  the  whole,  it  is  always  laid  down 
that  the  breach  muft  be  both  wilful  and  material  to  juftify 
tn  application  of  the  rule,’  But  in  the  cafe  of  an  intimate 
and  conftitutional  union,  like  that  of  the  United  States,  it  is 
evident  that  the  interpofition  of  the  parties,  in  their  fovereign 
capacity,  can  be  called  for  by  occafions  only,  deeply  and  ef- 
fentialiy  affecting  the  vital  principles  of  their  political  fyftenu 
The  refolution  has  accordingly  guarded  againft  any  mif- 
jipprehenfion  of  its  object,  by  exprefsly  requiring  for  fuch  an 
interpofition  u  the  cafe  of  a  deliberate ,  palpable ,  and  dangerous 
breach  of  the  conftitution,  by  the  exercife  of  powers  not  granted 
by  it.  It  muft  be  a  cafe,  not  of  a  light  and  tranfient  nature, 
but  of  a  nature  dangerous  to  the  great  purpofes  for  which  the 
conftitution  was  eftablifhed.  It  muft  be  a  cafe  moreover 
not  obfeure  or  doubtful  in  its  conftru£tion,  but  plain  and 
palpable .  Laftly,  it  muft  be  a  cafe  not  refulting  from  a  par¬ 
tial  confideration,  or  hafty  determination  *,  but  a  cafe  ftampt 
With  a  final  Confideration  and  deliberate  adherence.  It  is  not 
neceffary  becaufe  the  refolution  does  not  require,  that  the 
queftion  fhould  be  difeuffed,  how  far  the  exercife  of  any 
particular  power,  ungranted  by  the  conftitution,  would  juf¬ 
tify  the  interpofition  of  the  parties  to  it.  As  cafes  might 
eafily  be  ftated,  which  none  would  contend,  ought  to  fall 
within  that  defeription  :  Cafes,  on  the  other  hand,  might, 
with  equal  eafe,  be  ftated,  fo  flagrant  and  fo  fatal  as  to  unite 
every  opinion  in  placing  them  within  the  defeription. 

But  the  refolution  has  done  more  than  guard  againft  mif- 
conftrutftion,  by  exprefsly  referring  to  cafes  cf  a  deliberate , 
palpable  and  dangerous  nature.  It  fpecifics  the  object  of  the. 
interpofition  which  it  contemplates,  to  be  folely  that  of  ar- 
refting  the  progrefs  of  the  evil  of  usurpation,  aud  oi  main¬ 
taining  the  authorities,  rights  and  liberties  appertaining  to 
the  ftates,  as  parties  to  the  conftitution. 


(  s  )  .  : 

"from  tKis  view  of  the  refolution,  it  would  feem  inco'tfc* 
ceivable  that  it  can  incur  any  juft  difapprobation  from  thofe, 
who  laying  afide  all  momentary  impreflions,  and  recollecting 
the  genuine  fource  and  objcdh  of  the  federal  conftitution, 
/hall  candidly  and  accurately  interpret  the  meaning  of  the 
General  Aflembly.  If  the  deliberate  exercife  of  dangerous 
powers,  palpably  withheld  by  the  conftitution,  could  not 
juftify  the  parties  to  it,  in  interpofing  even  fo  far  as  to  arreft 
the  progrefs  of  the  evil,  and  thereby  to  preferve  the  confti¬ 
tution  itfelf  as  well  as  to  provide  for  the  fafety  of  the  parties 
to  it ;  there  would  be  an  end  to  all  relief  from  ufurped 
power,  and  a  direCt  fubverfion  of  the  rights  fpecified  or  re¬ 
cognized  under  all  the  ftate  conftitutions,  as  well  as  a  plain 
denial  of  the  fundamental  principle  upon  which  our  inde¬ 
pendence  itfelf  was  declared. 

But  it  is  objected,  that  the  judicial  authority  is  to  be  re¬ 
garded  as  the  foie  expofitor  of  the  conftitution,  in  the  laft 
refort ;  and  it  may  be  afked  for  what  reafon,  the  declaration 
by  the  General  Aflembly,  fuppofing  it  to  be  theoretically 
true,  could  be  required  at  the  prefent  day  and  in  fo  folemn  a 
manner. 

On  this  ob’e&ion  it  might  be  obferved  firjl,  that  there 
may  be  inftances  of  ufurped  power,  which  the  forms  of  the 
conftitution  would  never  draw  within  the  control  of  the  ju¬ 
dicial  department :  fecondly,  that  if  the  decifion  of  the  judi¬ 
ciary  be  raifed  above  the  authority  of  the  fovereign  parties  to 
the  conftitution,  the  decifions  of  the  other  departments,  not 
carried  by  the  forms  of  the  conftitution  before  the  judiciary* 
muft  be  equally  authoritative  and  final  with  the  decifions  of 
that  department.  But  the  proper  anfwer  to  the  objection 
is,  that  the  refolution  of  the  General  Aflembly  relates  to 
thofe  great  and  extraordinary  cafes,  in  which  all  the  forms 
of  the  conftitution  may  prove  ineffectual  againft  infractions 
dangerous  to  the  eflential  rights  of  the  parties  to  it.  The 
refolution  fuppofes  that  dangerous  powers  not  delegated, 
may  not  only  be  ufurped  and  executed  by  the  other  depart¬ 
ments,  but  that  the  Judicial  Department  alfo  may  exercife 
orfanCtion  dangerous  powers  beyond  the  grant  of  the  confti¬ 
tution  \  and  confequently  that  the  ultimate  right  of  the  par¬ 
ties  to  the  conftitution,  to  judge  whether  the  compact  has 
been  dangeroufly  violated,  mult  extend  to  violations  by  one 
delegated  authority,  as  well  as  by  another  ;  by  the  judiciary, 
as  well  as  by  the  executive,  or  the  legiflature. 

However  true  therefore  it  may  be  that  the  Judicial  De¬ 
partment,  is,  in  all  queftions  fubmitted  to  it  by  the  forms 
of  the  conftitution,  to  decide  in  the  laft  refort,  this  refori 


(  9  ) 

8* lift  tiecflTarily  be  deemed  the  lafl.  in  relation  to  the  atitho* 
rities  of  the  other  departments  of  the  government  ;  not  in 
relation  to  the  rights  of  the  parties  to  the  conft itutional  com¬ 
pact,  from  which  the  judicial  as  well  as  the  other  depart¬ 
ments  hold  their  delegated  trufts.  On  any  other  hypothecs, 
the  delegation  of  judicial  power  would  annul  the  authority 
delegating  it  •,  and  the  co?icurrence  of  this  department  with 
the  others  in  ufurped  powers,  might  fubvert  for  ever,  and 
beyond  the  pofhble  reach  of  any  rightful  remedy,  the  very 
conflitution,  which  all  were  inftituted  to’preferve. 

The  truth  declared  in  the  refolution  being  eflablifhed,  the 
expediency  of  making  the  declaration  at  the  prefent  day,  may 
fafely  be  left  to  the  temperate  confideration  and  candid 
judgment  of  the  American  public.  It  will  be  remembered 
that  a  frequent  recurrence  to  fundamental  principles  is  fo- 
lemnly  enjoined  by  moft  of  the  ftate  conftitutions,  and  par¬ 
ticularly  by  our  own,  as  a  necelfary  fafeguard  againfl  the 
danger  of  degeneracy  to  which  republics  are  liable,  as  well 
as  other  governments,  though  in  a  lefs  degree  than  others. 
And  a  fair  comparifon  of  the  political  dodlrines  not  unfre¬ 
quent  at  the  prefent  day,  with  thofe  which  characterized  the 
epoch  of  our  revolution,  and  which  form  the  bafis  of  our 
republican  conftitutions,  will  beft  determine  whether  the 
detlaratory  recurrence  here  made  to  thofe  principles  ought 
to  be  viewed  as  unfeafonable  and  improper,  or  as  a  vigilant 
difeharge  of  an  important  duty.  The.  authority  of  conftitu¬ 
tions  over  governments,  and  of  the  fovereignty  of  the  people 
over  conftitutions,  are  truths  which  are  at  all  times  necefTary 
to  be  kept  in  mind ;  and  at  no  time  perhaps  more  necefTary 
than  at  the  prefent. 

The  fourth  refolution  Hands  as  follows  • 

That  the  General  Affembly  doth  alfo  exp  refs  its  deep  regret ,  that 
a  fpirit  has  in  fun  dry  infiances ,  been  manifefled  by  the  Federal 
Government ,  to  enlarge  ids  powers  by  forced  confiruElions  of  the 
Confiitutional  charter  which  defines  them  ;  and  that  indications 
have  appeared  of  a  defign  to  expound  certain  general  phrafes 
( which ,  having  been  copied  from  the  very  limited  gra?it  of  powers 
in  the  former  articles  of  confederation  were  the  lefs  liable  to  be  mifo 
confirued f  fo  as  to  defir oy  the  meaning  and  effeEl ,  of  the  particular 
enumeration  which  neceffirily  explains ,  and  limits  the  general 
phrafes  ;  and  fo  as  to  confclidate  the  fates  by  degrees ,  into  one  fo- 
vereignty ,  the  obvious  tendency  and  inevitable  refult  of  which  would 
bey  to  transform  the  prefent  Republican  Jy fern  of  the  United  States9 
into  ati  abflutey  or  at  beft  a  mixed  monarchy . 

The  fir  ft  queftion  here  to  be  confidered  is,  whether  a  fpi- 
k  iQ  in  fundry  inftances  been  manifefled  by  the  Federal 


rit  na» 


B 


{  10  ) 


Government  to  enlarge  its  powers  by  forced  conftruttion* 
©f  the  Conftitutional  charter. 

The  General  AfTembly  having  declared  their  opinion 
merely  by  regretting  in  general  terms  that  forced  condruc- 
tions  for  enlarging  the  federal  powers  have  taken  place,  it 
docs  not  appear  to  the  committee  necedary  to  go  into  a  fpe- 
cification  of  every  inftance  to  which  the  refolution  may  al¬ 
lude.  The  Alien  and  Sedition  acts  being  particularly  named 
in  a  fucceeding  refolution,  are  of  courfe  to  be  underftood  as 
included  in  the  allufion.  Omitting  others  which  have  lefs 
occupied  public  attention,  or  been  lefs  extensively  regarded 
as  unconftitutional,  the  refolution  may  be  prefumed  to  refer 
particularly  to  the  bank  law,  which  from  the  circumdances 
of  its  paflage  as  well  as  the  latitude  of  conftrudbion  on  which 
it  is  founded,  flrikes  the  attention  with  lingular  force ;  and 
the  carriage  tax,  diftinguifhed  alfo  by  circum dances  in  its 
hidory  having  a  fimilar  tendency.  Thofe  inftances  alone, 
if  refulting  from  forced  conftruFlion  and  calculated  to  enlarge 
the  powers  of  the  federal  government,  as  the  committee  cannot 
but  conceive  to  be  the  cafe,  diffidently  warrant  this  part  of 
the  refolution.  I  he  committee  have  not  thought  it  incum- 
bent  on  them  to  extend  their  attention  to  laws  which  have 
been  cbje&ed  to,  rather  as  varying  the  Conltitutional  didri- 
bution  of  powers  in  the  Federal  government,  than  a.s  an  ab~ 
folute  enlargement  of  them  ;  becaufe  inftances  of  this  fort, 
however  important  in  their  principles  and  tendencies,  do  not 
appear  to  fall  ftritlly  within  the  text  under  review* 

The  other  queftions  prefenting  tfiemfelves,  are — i.  Whe¬ 
ther  indications  have  appeared  of  a  dedgn  to  expound  cer¬ 
tain  general  phrafes  copied  from  the  “  articles  of  confede¬ 
ration,  '*  fo  as  to  deftroy  the  cfhedl  of  the  particular  enume¬ 
ration  explaining  and  limiting  their  meaning.  2.  Whether 
this  expodtion  would  by  degrees  confolidate  the  dates  into 
one  fovereignty.  3.  Whether  the  tendency  and  refult  of 
this  confoiidation  would  be  to  transform  the  Republican, 
fyitern  of  the  United  States  into  a  monarchy. 

1.  he  general  phraies  here  meant  mud  be  thofe  oF 


providing  for  the  common  defence  and  general  welfare. ” 

In  the  articles  of  confederation”  the  phrafes  arc  ufeci 
rs  follows,  in  article  VIII.  All  charges  of  war,  and  all 
other  cxpences  that  ffiall  be  incurred  for  the  common  defence 
and  general  welfare ,  and  allowed  by  the  United  States  in, 
Congrefs  aiiembied,  fhall  be  defrayed  out  of  a  common  trea¬ 
sury,  wnich  fhall  be  fupphed  by  the  feveral  dates,  in  pro¬ 
portion  to  the  value  of  all  land  within  each  date,  granted  to- 
or  iurveyed  for  any  perfon,  as  iuch  land  and  the  buildings. 


<  i*  ) 

*md  improvement*  thereon  {hall  be  eftimated,  recording  t* 
Fuch  mode  as  the  United  States  in  Congrefs  aflembled,  {hall 
from  time  to  time  direct  and  appoint.” 

In  the  cxifting  conftitution,  they  make  the  following  pare 
£>f  fection  8.  44  The  Congrefs  fhali  have  power,  to  lay  and 

collect  taxes,  duties,  impofts  and  excifes  to  pay  the  debts, 
-and  provide  for  the  common  defence  and  general  welfare  of 
the  United  States. 

This  fimilarity  in  the  life  of  thefe  phrafes  in  the  two  great 
federal  charters,  might  well  be  confidered,  as  rendering  their 
meaning  lefs  liable  to  be  mifeonftrued  in  the  latter  *,  becaufe 
it  will  fcarcely  be  faid  that  in  the  former  they  were  ever  un- 
derftood  to  be  either  a  general  grant  or  power,  or  to  autho- 
rife  the  requifition  or  application  of  money  by  the  old  Con¬ 
grefs  to  the  common  defence  and  general  welfare,  except  in 
the  cafes  afterwards  enumerated  which  explained  and  limited 
their  meaning  ;  and  if  fuch  was  the  limited  meaning  attached 
to  thefe  phrafes  in  the  very  inilrument  revifed  and  remodelled 
by  the  prefent  conftitution,  it  can  never  be  fuppofed  that 
when  copied  into  this  conftitution,  a  different  meaning 
ought  to  be  attached  to  them. 

That  notwithftanding  this  remarkable  fecurity  againft  mif- 
conftruflion,  a  defign  has  been  indicated  to  expound  thefe 
phrafes  in  the  conftitution  fo  as  to  deftroy  the  effect  of  the 
particular  enumeration  of  powers  by  which  it  explains  and 
limits  them,  muff  have  fallen  under  the  obfervation  of  thofe 
who  have  attended  to  the  courfe  of  public  tranfaclions.  Not 
to  multiply  proofs  on  this  fubjedt,  it  will  fuffice  to  refer  to 
the  debates  in  the  Federal  Legiftature,  in  which  arguments 
have  on  different  occafions  been  drawn,  with  apparent  efFedlq 
from  thefe  phrafes  in  their  indefinite  meaning. 

To  thefe  indications  might  be  added,  without  looking  far¬ 
ther,  the  official  report  on  manufactures  by  the  late  Secre¬ 
tary  of  the  Treafury,  made  on  the  5th  of  December,  1791  ; 
and  the  report  of  a  committee  of  Congrefs  in  January  1797, 
on  the  promotion  of  agriculture.  In  the  firft  of  thefe  it  is 
cxprefsly  contended  to  belong  cc  to  the  diferetion  of  theNati- 
onal  legillatureto pronounce  upon  the  objects  which  concern 
6i  the  general  welfare ,  and  for  which,  under  that  defeription, 
4‘  an  appropriation  of  money  is  requifite  and  proper.  And 
i<’  there  feemstobeno  room  for  a  doubt  that  whateverconcerns 
44  the  general  intcrefts  of  learning,  of  agriculture,  of 
««  manufactures,  and  of  commerce,  arc  within  the  fphere 
of  the  national  councils,  as  far  as  regards  an  application  of 
i(  money”  The  latter  report  affumes  the  fame  latitude  of 
power  in  the  national  councils,  and  applies  it  to  the  encoa- 


(  *2  ) 


ragement  of  agriculture,  by  means  of  a  fociety  to  be  eflab* 
llfhed  at  the  feat  of  government.  Although  neither  of  thefe 
reports  may  have  received  the  fandfcion  of  a  law  carrying  it 
into  effcdfe,  yet,  on  the  other  hand,  the  extraordinary  doc¬ 
trine  contained  in  both,  has  palled  without  the  flighted! 
pofitive  mark  of  difapprobation  from  the  authority  to  which 
it  was  add  refled. 

Now  whether  the  phrafes  in  queftion  be  conflruecl  to  au¬ 
thor'd  e  every  mealure  relating  to  the  common  defence  ami 
general  welfare,  as  contended  by  fome  ;  or  every  meafure 
only  in  which  there  might  be  an  application  of  money,  as 
fuggelted  by  the  caution  of  others,  the  effedl  mull  fubftan- 
tlally  be  the  fame,  in  deftroying  the  import  and  force  of  the 
particular  enumeration  of  powers,  which  follow  thefe  general  • 
phrafes  in  the  Conllitution.  For  it  is  evident  that  there  is 
not  a  Angle  power  whatever,  which  may  not  have  fome  re¬ 
ference  to  the  common  defence,  or  the  general  welfare ;  nor 
a  power  of  any  magnitude  which  in  its  exercife  does  not  in¬ 
volve  or  admit  an  application  of  money.  The  government 
therefore  which  poflefles  power  in  either  one  or  other  of 
thefe  extents,  is  a  government  without  the  limitations  formed 
by  a  particular  enumeration  of  powers  ;  and  confequently 
the  meaning  and  effedt  of  this  particular  enumeration,  is 
deflroyed  by  the  expofition  given  to  thefe  general  phrafes. 

This  conclufion  will  not  be  affedted  by  an  attempt  to  qua¬ 
lify  the  power  over  the  “  general  welfare,”  by  referring  it 
to  cafes  where  the  general  welfare  is  beyond  the  reach  of 
Jeparate  provifions  by  the  individual  Jl ate s ;  and  leaving  to. 
thefe  their  jurifdidtions  in  cafes,  to  which  their  feparate  pro¬ 
vifions  may  be  competent.  For  as  the  authority  of  the  indi¬ 
vidual  Hates  mud  in  all  cafes  be  incompetent  to  general  regu¬ 
lations  operating  through  the  whole,  tire  authority  of  the 
United  States  would  be  extended  to  every  objedl  relating 
to  the  general  welfare,  which  might  by  any  poffibility  be 
provided  for  by  the  general  authority.  This  qualifying 
conftrudlion  therefore  would  have  little,  if  any  tendency,  to 
circumfcribe  the  power  claimed  under  the  latitude  of  the 
terms  “  general  welfare.” 

The  true  and  fair  conflrudKon  of  this  expreflion,  both  in 
the  original  and  exilting  federal  compacts  appears  to  the 
committee  too  obvious  to  be  miitaken.  In  both,  the  Con¬ 
gress  authorized  to  provide  money  for  the  common  defence 
and  general  welfare ,  In  both,  is  fubjoined  to  this  authority,  > 
an  enumeration  of  the  cafes,  to  which  their  powers  lhall  ex¬ 
tend.  Money  cannot  be  applied  to  the  general  welfare , 
otherwiie  than  by  an  application  of  it  to  fome  particular  mea- 


(  *3  ) 


fare  conducive  to  the  general  welfare.  Whenever  there¬ 
fore,  money  has  been  railed  by  the  general  authority,  and  is 
to  be  applied  to  a  particular  meafure,  a  queftien  ariles,  whe¬ 
ther  the  particular  meafure  be  within  the  enumerated  autho¬ 
rities  veiled  in  Congrefs.  If  it  be,  the  money  requifite  for 
it  may  be  applied  to  it ;  if  it  be  not,  no  fuch  application  can 
be  made.  This  fair  and  obvious  interpretation  coincides 
with,  and  is  enforced  by,  the  claufe  in  the  Conftitution  which 
declares  that  “  no  money  (hall  be  drawn  from  the  treafury, 
but  in  confequenee  of  appropriations  by  law.”  An  appro¬ 
priation  of  money  to  the  general  welfare,  would  be  deemed 
rather  a  mockery  than  an  obfervance  of  this  Conllitutional 
injunction. 

2.  Whether  the  expofition  of  the  general  phrafes  here 
combated,  would  not,  by  degrees  confolidate  the  dates  into 
one  fovereignty,  is  a  queftion  concerning  which,  the  commit¬ 
tee  can  perceive  little  room  for  difference  of  opinion.  To 
confolidate  the  Hates  into  one  fovereignty,  nothing  more  can 
be  wanted,  than  10  fupercede  their  refpeblive  fovereignties 
in  the  cafes  referved  to  them,  by  extending  the  fovereignty 
of  the  United  States  to  all  cads  of  the  u  general  welfare,” 
that  is  to  fay,  to  all  cafes  whatever. 

3,  That  the  obvious  tendency  and  inevitable  refult  of  a 
confolidation  of  the  Hates  into  one  fovereignty,  would  be,  to 
transform  the  republican  fydem  of  the  United  States  into  a 
monarchy,  is  a  point  which  feems  to  have  been  diffidently 
decided  by  the  general  fentiment  of  America.  In  almoft 
every  inHance  of  difeuffion,  relating  to  the  confolidation  in 
queHion,  its  certain  tendency  to  pave  the  way  to  monarchy, 
feems  not  to  have  been  contefted,  The  profpedl  of  fuch  a 
confolidation  has  formed  the  only  topic  of  controverfy.  It 
would  be  unneceffary  therefore,  for  the  committee  to  dwell 
long  on  the  reafons  which  fupport  the  pofition  of  the  General 
Aflembly.  It  may  not  be  improper,  however,  to  remark 
two  confequences  evidently  flowing  from  an  extenfion  of  the 
federal  powers  to  every  fubjedl  falling  within  the  idea  of  the 
“  general  welfare.” 

One  confequenee  muH  be,  to  enlarge  the  fphere  of  dif- 
cretion  allotted  to  the  executive  magiilrate.  Even  within 
the  legiflative  limits  properly  defined  by  the  Conftitution,  the 
difficulty  of  accommodating  legal  regulations  to  a  country 
fo  great  in  extent,  and  fo  various  in  its  circum fiances,  has 
been  much  felt ;  and  has  led  to  occafional  inveftments  of 
power  in  the  executive,  which  involve  perhaps  as  large  a 
portion  of  diferetion,  as  can  be  deemed  confident  with  the 
nature  of  the  executive  trull.  In  proportion  an  the  cbieds  of 


(  »4  ) 


fcgifiative  care  might  be  multiplied,  would  the  time  allowed 
for  each  be  diminifned,  and  the  difficulty  of  providing  uni¬ 
form  and  particular  regulations  for  all,  be  increafed.  From 
ihcfe  i'ourccs  would  neceflarily  enfue,  a  greater  latitude  to  the 
agency  of  that  department  which  is  always  in  exiftence,  and 
which  could  bed  mould  regulations  of  a  general  nature,  fo  as 
to  fuit  them  to  the  diverfity  of  particular  filiations.  And  it 
is  in  this  latitude,  as  a  fupplemcnt  to  the  deficiency  of  the  laws, 
that  the  degree  of  executive  prerogative  materially  confids. 

The  other  confequence  would  be,  that  of  an  exceffive 
augmentation  of  the  offices,  honours,  and  emoluments  de¬ 
pending  on  the  executive  will.  Add  to  the  prefent  legiti¬ 
mate  flock,  all  thofe  of  every  defeription  which  a  confolidation 
of  the  hates  would  take  from  them,  and  turn  over  to  the 
federal  government,  and  the  patronage  of  the  executive 
would  necefiarily  be  as  much  fwelled  in  this  cafe,  as  its  pre¬ 
rogative  would  be  in  the  other. 

This  difproportionate  increafe  of  prerogative  and  patro¬ 
nage  muff,  evidently,  either  enable  the  chief  magidrate  of 
the  union,  by  quiet  means,  to  fecure  his  re-eledlion  from 
time  to  time,  and  finally,  to  regulate  the  fucceffion  as  he 
might  pleafe  ;  or,  by  giving  fo  tranfeendent  an  importance  to 
the  office,  would  render  the  elections  to  it  fo  violent  and 
corrupt,  that  the  public  voice  itfelf  might  call  for  an  here¬ 
ditary,  in  place  of  an  elective  fucceffion.  Which  ever  of 
thefe  events  might  follow,  the  transformation  of  the  Re¬ 
publican  fyftem  of  the  United  States  into  a  monarchy, 
anticipated  by  the  General  Adembly  from  a  confolidation  of 
the  dates  into  one  fovereignty,  would  be  equally  accom¬ 
plished  ;  and  whether  it  would  be  into  a  mixt  or  an  abfolute 
monarchy,  might  depend  on  too  many  contingencies  to  admit 
of  any  certain  forefight. 

The  refolution  next  in  order,  is  contained  in  the  following 
terms  : 

"That  the  General  Ajfembly  doth  particularly  protejl  againjl  the 
palpable ,  and  alarming  infractions  of  the  ConJHtution ,  in  the  two 
late  cafes  of  the  Alien  and  Sedition  aEisf  paffed  at  the  loft 
fjfon  of  Congrefs  ;  the  firjl  of  •which ,  exercifes  a  power  no  where 
delegated  to  the  federal  government  ;  and  which  by  uniting  legif- 
l stive  and  judicial  powers  to  thofe  of  executive ,  fubverts  the  general 
principles  of  a  free  government ,  as  well  as  the  particular  orga - 
mention,  and  pofitive  prov'fmns  of  the  federal  ConJHtution  ;  and 
the  other  of  which  acts ,  exercifes  in  like  manner ,  a  power  not 
delegated  by  the  ConJHtution ,  but  on  the  contrary ,  exprefly  and 
pojitively  forbidden  by  one  of  the  amendments  thereto  ; — a  power , 
wmi'h}  more  than  any  other ,  ought  to  produce  univerfal  alarm  f 


(  *5  ) 

hecaufe  it  is  levelled  againjl  that  right  of  freely  examining  pub  If 9 
characters  and  meafurcs ,  and  of  free  communication  among  the 
people  thereon ,  which  has  ever  been  jufly  deemed  the  mofl  ejfeEtual 
guardian  of  every  other  right. 

The  fubjedi  of  this  refolution  having,  it  is  prcfumcd, 
more  particularly  led  the  General  Affembly  into  the  pro¬ 
ceedings  which  they  communicated  to  the  other  Hates,  and 
being  in  itfelf  of  peculiar  importance,  it  deferves  the  moft 
critical  and  faithful  invefligation for  the  length  of  which* 
no  other  apology  will  be  neceflarv. 

The  fubjedl  divides  itfelf  into,  firj 7y  u  The  Alien  A€t  f 
fecondly ,  “  The  Sedition  A£t.” 

Of  the  Alien  Add,”  it  is  affirmed  by  the  refolution, 
xfl,  That  it  excrcifes  a  power  no  where  delegated  to  the 
federal  government.  2d.  That  it  unites  legifktive  and  ju~ 
dicial  powers  to  thofe  of  the  executive.  3d.  That  this  union 
of  power,  fubverts  the  general  principles  of  free  government* 
4th.  That  it  fubverts  the  particular  organization  and  pohtive 
provilions  of  the  federal  conflitution. 

In  order  to  clear  the  way  for  a  correct  view  of  the  hrff 
pohtion,  feveral  obfervations  will  be  premifed. 

In  the  firft  place,  it  is  to  be  borne  in  mind,  that  it  being 
a  charadleriflic  feature  of  the  federal  conflitution,  as  it  was 
originally  ratified,  and  an  amendment  thereto  having  pre- 
cifely  declared,  “  That  the  powers  not  delegated  to  the 
United  States  by  the  conflitution,  nor  prohibited  by  it  to 
the  Hates,  are  referved  to  the  Hates  refpectively,  or  to  the 
people  it  is  incumbent  in  this,  as  in  every  other  exercile 
of  power  by  the  federal  government,  to  prove  from  the  con- 
Hitution,  that  it  grants  the  particular  power  exercifed. 

The  next  obfervation  to  be  made,  is,  that  much  confu-. 
fion  and  fallacy  have  been  thrown  into  the  queHion,  by 
blending  the  two  cafes  of  aliens ,  members  of  a  hofile  nation , 
and  aliens y  members  of  friendly  nations .  Thefe  two  cafes  are 
fo  obvioufly  and  fo  effentially  diilindl,  that  it  occafions  no 
little  furprife  that  the  diftindlion  fliould  have  been  difre- 
garded  :  and  the  furprife  is  fo  much  the  greater,  as  it  ap¬ 
pears  that  the  two  cafes  are  actually  diftinguifhed  by  two 
feparate  adds  of  Congrefs,  paffed  at  the  fame  feffion,  and 
comprifed  in  the  fame  publication,  the  one  providing  for 
the  cafe  of  u  alien  enemies  the  other  u  concerning  aliens,” 
indiferiminately  ;  and  confequently  extending  to  aliens  of 
every  nation  in  peace  and  amity  with  the  United  States. 
With  refpedl  to  alien  enemies,  no  doubt  has  been  intimated 
as  to  the  federal  authority  over  them  :  the  conflitution  hav¬ 
ing  exprefsly  delegated  to  Congrefs  the  power  to  declare 


('  *«  ) 


war  airainft  nnv  nation,  and  of  courfe  to  treat  it  and  all  its 

O  ^  ' 

members  as  enemies.  With  refpetl  to  aliens,  who  are  not 
enemies,  but  members  of  nations  in  peace  and  amity  with 
the  United  States,  the  power  aftumed  by  the  a  cl  of  Con- 
grefs,  is  denied  to  be  conftitutional  ;  and  it  is  accordingly 
again  ft  this  add,  that  the  proteft  of  the  General  Aflembly  is 
exprefsly  and  exclufively  diredled, 

A  third  obfervation  is,  that  were  it  admitted,  as  is  con¬ 
tended,  that  the  tc  adf  concerning  aliens,”  has  for  its  objedl, 
not  a  penal,  but  a  preventive  juftice  ;  it  would  (till  remain  to 
be  proved,  that  it  comes  within  the  conftitutional  power  of 
the  federal  legiflature  *,  and  if  within  its  power,  that  the  le~ 


giilaturehas  exercifed  it  in  a  conftitutional  manner. 

In  the  adminiftration  of  preventive  iuftice,  the  following 
principles  have  been  held  facred :  that  iomc  probable  ground 
of  fufpicion  be  exhibited  before  fome  judicial  authority;  that 
it  be  fupported  by  oath  or  affirmation  ;  that  the  party  may 
avoid  being  thrown  into  confinement,  by  finding  pledges  or 
fureties  for  his  legal  conduct,  fufticient  in  the  judgment  of 
fome  judicial  authority  ;  that  he  may  have  the  benefit  of  a 
writ  of  habeas  corpus,  and  thus  obtain  his  releafe,  if  wrong¬ 
fully  confined;  and  that  he  may  at  any  time  be  difeharged 
from  his  recognizance,  or  his  confinement,  and  reftored  to 
his  former  liberty  and  rights,  on  the  order  of  the  proper  ju¬ 
dicial  authority;  if  it  fhall  fee  fufticient  caufe. 

All  thefe  principles  of  the  only  preventive  juftice  known 
to  American  jurifpruderice,  are  violated  by  the  alien  a  cl. 
1  he  ground  of  fufpicion  is  to  be  judged  of,  not  by  any  ju¬ 
dicial  authority,  but  by  the  executive  magiftrate  alone;  no 
oath  or  affirmation  is  required  ;  if  the  fulpicion  be  held  rea- 
lonable  by  the  Prefident,  he  may  order  the  fufpedled  alien 
to  depart  the  territory  of  the  United  States,  without  the  op¬ 
portunity  of  avoiding  the  fentenee,  by  finding  pledges  for  his 
future  good  conduct;  as  the  Prefident  may  limit  the  time  of 
departure  as  he  pleafes,  the  benefit  of  the  writ  of  habeas 


corpus,  may  be  fufpended  with  refpecl  to  the  party,  although 
the  conftitution  ordains,  that  it  fhall  not  be  fufpended,  un- 
lefs  where  the  public  fafety  may  require  it  in  cafe  of  rebellion 
or  invafion,  neither  of  which  exifted  at  the  pa  ft  age  of  the  add  : 
And  the  party  being,  under  the  fentenee  of  the  Prefident, 
either  removed  from  the  United  States,  or  being  punifhed 
by  imprii'onment,  or  difqualification  ever  to  become  a  citizen 
on  conviction  of  not  obeying  the  order  of  removal,  he  cannot 
be  diicharged  from  the  proceedings  againft  him,  and  reftored 
to  the  benefits  of  his  former  fituation,  although  the  hisheft 


J  l  iulC 


till 


a  ith'A'ity  ihould  fee  the  mod  iufficient  caufe  for  it. 


!  *7  ) 

But,  m  the  laft  place,  it  can  never  be  admitted,  that  the 
removal  of  aliens,  authorifed  by  the  ad,  is  to  be  conlidered, 
not  as  punilhment  for  an  offence ;  but  as  a  meafure  of  pre- 
caution  and  prevention.  If  the  banilhment  of  an  alien  from 
z  country  into  which  he  has  been  invited,  as  the  afylum  mod 
aufpicious  to  his  happinefa  ;  a  country,  where  he  may  have 
formed  the  moll  tender  of  connexions,  where  he  may  have 
veiled  his  entire  property,  and  acquired  property  of  the  real 
and  permanent,  as  well  as  the  moveable  and  temporary 
kind  ;  where  he  enjoys,  under  the  laws,  a  greater  {hare 
of  the  bleffmgs  of  perfonal  fecurity  and  liberty,  than 
he  can  elfe where  hope  for,  and  where  he  may  have 
nearly  completed  his  probationary  title  to  citizenllup  ;  if 
moreover,  in  the  execution  of  the  lentence  againll  him,  he 
is  to  be  expofed,  not  only  to  the  ordinary  dangers  of  the  fea, 
but  to  the  peculiar  cafualti.es  incident  to  a  crifis  of  war,  and 
of  unufual  licentioufnefs  on  that  element,  and  poffibly  to  vin¬ 
dictive  purpofes  which  his  emigration  itfelf  may  have  pro¬ 
voked  ;  if  a  banifhment  of  this  fort  be  not  a  punilhment,  and 
among  the  feverdi  of  punilhments,  it  will  be  difficult  to 
imagine  a  doom  to  which  the  name  can  be  applied.  And  if 
it  be  a  punilhment,  it  will  remain  to  be  enquired,  whether 
it  can  be  corrllitutionally  indicted,  on  mere  fufpicion,  by  the 
Ijngle  will  of  the  executive  magiltrate,  on  perfons  convicted 
of  no  perfonal  offence  againll  the  laws  of  the  land,  nor  in¬ 
volved  in  any  offence  againll  the  law  of  nations,  charged  ca 
ihe  foreign  Hate  of  which  they  are  members. 

One  argument  offered  in  j unification  of  this  power  exer- 
cifed  over  aliens,  is,  that  the  admiffion  of  them  into  the  country 
being  of  favour  not  of  right,  the  favour  is  at  all  times  revokable. 

To  this  argument  it  might  be  anfvvered,  that  allowing  the 
truth  of  the  inference,  it  would  be  no  proof  of  what  is  re¬ 
quired.  A  queftion  will  Hill  occur,  whether  the  conllitution 
had  veiled  the  diferetionary  power  of  admitting  aliens  in  the 
federal  government  or  in  the  Hate  governments. 

But  it  can  not  be  a  true  inference,  that  becaufe  the  ad- 
miffion  of  an  alien  is  a  favour,  the  favour  may  be  revoked  at 
pleafure.  A  grant  of  land  to  an  individual,  may  be  of  favour 
not  of  right ;  but  the  moment  the  grant  is  made,  the  favour 
becomes  a  right,  and  mull  be  forfeited  before  it  can  be  taken 
away.  To  pardon  a  malefadlor  may  be  a  favour,  but  the 
pardon  is  not,  on  that  account,  the  lefs  irrevocable,  do 
admit  an  alien  to  naturalization,  is  as  much  a  favour,  as  to 
admit  him  to  refide  in  the  country  ;  yet  it  cannot  be  pre¬ 
tended,  that  a  perfon  naturalized  can  be  deprived  of  the  bo 
jaefit,  any  more  than  a  native  citizen  can  be  disfrauchifed,. 

€ 


<  »*  I 

Again  it  is  fait!,  that  aliens  not  being  parties  to  the  con¬ 
fer,  ution,  the  rights  and  privileges  which  it  fecures,  cannot 
be  at  all  claimed  by  them. 

To  this  reafoning  alfo,  it  might  be  anfwered,  that  although 
aliens  are  not  parties  to  the  conftitution,  it  does  not  follow 
that  the  conftitution  has  veiled  in  Congrefs  an  abfolute  power 
over  them.  The  parties  to  the  conftitution  may  have  granted* 
or  retained,  or  modified  the  power  over  aliens,  without  re¬ 
gard  to  that  particular  consideration. 

But  a  more  direct  reply  is,  that  it  does  not  follow,  be¬ 
came  aliens  are  not  parties  to  the  conftitution,  as  citizens  are 
parties  to  it,  that  whilll  they  actually  conform  to  it,  they 
have  no  right  to  its  protection.  Aliens  are  not  more  parties 
to  the  laws,  than  they  are  parties  to  the  conftitution  >  yet  it 
■will  not  be  difputed,  that  as  they  owe,  on  one  hand,  a  tem¬ 
porary  obedience,  they  are  entitled  in  return,  to  their  pro¬ 
tection  and  advantage* 

If  aliens  had  no  rights  under  the  Conftitution,  they  might 
not  only  be  banilhed,  but  even  capitally  punifhed,  without  a 
jury  or  the  other  incidents  to  a  fair  trial.  But  fo  far  has  a 
contrary  principle  been  carried,  in  every  part  of  the  United 
Srates,  that  except  on  charges  of  treafon,  an  alien  has,  be- 
ikies  all  the  common  privileges,  the  fpeeial  one  ©f  being 
tried  by  a  jury,  of  which  one  half  may  be  alfo  aliens. 

It  is  faid.  farther,  that  by  the  law  and  practice  of  nations, 
aliens  may  be  removed  at  diferetion,  for  offences  againft  the 
law  of  nations ;  that  Congrefs  are  authorifed  to  define  and 
punifh  fuch  offences  ;  and  that  to  be  dangerous  to  the  peace 
of  fociety  is,  in  aliens,  one  of  thole  offences. 

The  diftindfion  between  alien  enemies  and  alien  friends, 
is  a  clear  and  conclufive  anfwer  to  this  argument.  Alien 

c 

enemies  are  under  the  law  of  nations,  and  liable  to  be  pu- 
ififhed  for  offences  againft  it.  Alien  friends,  except  in  the 
fmgle  cafe  of  public  minifters,  are  under  the  municipal  lavt'1, 
and  mult  be  tried  and  punifhed  according  to  that  law  only. 

This  argument  alfo,  by  referring  the  alien  act,  to  the 
power  of  Congrefs  to  define  and  punijb  offences  againft  the 
law  of  nations,  yields  the  point,  that  the  a <T  is  of  a  penal ,  not 
merely  of  a  preventive  operation.  It  muft,  in  truth  be  fo 
confidered.  And  if  it  be  a  penal  act,  the  puniftiment  it  in- 
muft  be  juftified  by  fome  offence  that  deferves  it. 

Offences  for  which  aliens  within  the  jurisdiction  of  a 
•ountry,  are  punifhable,  are  firft,  offences  committed  by  the 
nation  of  which  they  make  a  part,  and  in  whofe  offences  they 
are  involved  :  Secondly,  offences  committed  by  themfeives 
alone,  without  uny  charge  againft  the  nation  to  which  they 


i  *9  ) 

belong.  The  firlt  is  the  cafe  of  alien  enemies ;  the  feconS 
the  cafe  of  alien  friends.  In  the  firft  cafe,  the  offending 
nation  can  no  otherwife  be  punifhed  than  by  war,  one  of  the 
laws  which  authorifes  the  expul fion  of  fuch  of  its  members, 
as  may  be  found  within  the  country,  againft  which  the  of¬ 
fence  has  been  committed.  In  the  fecond  cafe,  the  offence 
being  committed  by  the  individual,  sot  by  his  nation,  and 
againft  the  municipal  law,  not  againft  the  law  of  nations  j 
the  individual  only,  and  not  the  nation  is  punifhable 3  and 
the  punifhment  mufl  be  condu&ed  according  to  the  municipal 
law,  not  according  to  the  law  of  nations.  Under  this  vie.v 
of  the  fubjecl,  the  act  of  Congrefs,  for  the  removal  of  alien 
enemies,  being  conformable  to  the  law  of  nations,  is  juftified 
by  the  Conftitution  :  and  the  <c  act,”  for  the  removal  of  alien 
friends,  being  repugnant  to  the  Conftitutional  principles  o£ 
municipal  law,  is  unjuftifiable. 

Nor  is  the  a£l  of  Congrefs,  for  the  removal  of  alien  friends, 
more  agreeable  to  the  general  practice  of  nations,  than  it  is 
within  the  purview  of  the  law  of  nations.  The  genera! 
practice  of  nations,  diftinguifties  between  alien  friends  and 
alien  enemies.  The  latter  it  has  proceeded  againft,  according 
to  the  law  of  nations,  by  expelling  them  as  enemies.  The 
former  it  has  confidered  as  under  a  local  and  temporary 
allegiance,  and  entitled  to  a  correfpondent  protection.  If 
contrary  inftances  are  to  be  found  in  barbarous  countries, 
under  undefined  prerogatives,  or  amid  revolutionary  dan¬ 
gers  ;  they  will  not  be  deemed  fit  precedents  for  the  go¬ 
vernment  of  the  United  States,  even,  if  not  beyond  its  Con¬ 
ftitutional  authority. 

It  is  faid,  that  Congrefs  may  grant  letters  of  marque  and 
reprifal  3  that  reprifals  may  be  made  on  perfons,  as  well  as 
property  3  and  that  the  removal  of  aliens  may  be  confidered 
as  the  exercife  in  an  inferior  degree,  of  the  general  power  of 
reprifal  on  perfons. 

Without  entering  minutely  into  a  queftion  that  does  not 
feem  to  require  it 3  it  may  be  remarked,  that  reprifal  is  a 
feizure  of  foreign  perfons  or  property,  with  a  view  to  obtain 
that  juftice  for  injuries  done  by  one  ftate  or  its  members,  to 
another  ftate  or  its  members  3  for  which  a  refufal  of  the  ag- 
grefibr  requires  fuch  a  refort  to  force  under  the  lav/  of  na¬ 
tions.  Ic  nruft  be  confidered  as  an  abufe  of  words  to  cal! 
the  removal  of  perfons  from  a  country,  a  feizure  or  reprifal 
on  them  3  nor  is  the  diftindlion  to  be  overlooked  between 
reprifals  on  perfons  within  the  country  and  under  the  faith 
of  its  laws,  and  on  perfons  out  of  the  country.  But,  laying 
a  fide  thefe  confiderations  3  it  is  evidently  impoifible  to  bring 


(  40  ) 


the  alien  a&  within  the  power  of  granting  reprifals  ;  fincc  ft 
does  not  allege  cr  imply  any  injury  received  from  any  parti¬ 
cular  nation,  for  which  this  proceeding  againfl  its  members- 
was  intended  as  a  reparation.  The  proceeding  is  authorized 
againft  aliens  of  every  nation  ;  of  nations  charged  neither  with 
any  fimiJar  proceeding  againft  American  citizens,  nor  with 
any  injuries  for  which  juftice  might  be  fought,  in  the  mode 
preferibed  by  the  a£l,  Were  it  true  therefore,  that  good 
caufes  exifted  for  reprifals  againft  one  or  more  foreign  na¬ 
tions,  and  that  neither  the  perfons  nor  property  of  its  mem¬ 
ber, s  under  the  faith  of  our  laws,  could  plead  an  exemption  ; 
the  operation  of  the  a£t  ought  to  be  limited  to  the  aliens 
among  us,  belonging  to  fuch  nations.  To  licenfe  reprifal* 
againft  all  nations,  for  aggreflions  charged  on  one  only,  would 
be  a  meafuie  as  contrary  to  every  principle  of  juftice  and 
public  la  w,  as  to  a  wife  policy,  and  the  univerfal  practice  of 
nations. 

It  is  faid,  that  the  right  of  removing  aliens  is  an  incident  to 
fche  power  of  war  veiled  in  Congrefs,  by  the  Conftitution. 

This  is  a  former  argument  in  a  new  lhape  only ;  and  if 
anfwered  by  repeating,  that  the  removal  of  alien  enemies  is 
an  incident  to  the  power  of  war  ;  that  the  removal  of  alien 
triends,  is  not  an  incident  to  the  power  of  war. 

It  is  faid,  that  Congrefs  are,  by  the  conftitution,  to  pro- 
te£l  each  ftate  againft  invafion  \  and  that  the  means  of  pre¬ 
venting  invafion,  are  included  in  Uie  power  of  protection 
againft  it. 

The  power  of  war  in  general',  having  been  before  granted 
by  the  conftitution,  this  claufe  muft  either  be  a  mere  fpeef- 
fication  for  greater  caution  and  certainty,  of  which  there  are 
other  examples  in  the  inftrument ;  or  be  the  injunction  of  a 
duty,  fuperadded  to  a  grant  of  the  power.  Under  either 
explanation,  it  cannot  enlarge  the  powers  of  Congrefs  on  the 
fubject.  The  power  and  the  duty  to  protect  each  ftate 
againft  an  invading  enemy,  would  be  the  fame  under  the  ge¬ 
neral  power,  if  this  regard  to  greater  caution  had  been  omitted. 

Invafion  is  an  operation  of  war.  To  protect  againft  in¬ 
vafion  is  an  exercife  of  the  power  of  war.  A  power  there¬ 
fore  not  incident  to  war,  cannot  he  incident  to  a  particular 
modification  of  war.  And  as  the  removal  of  alien  friends 
has  appeared  to  be  no  incident  to  a  general  ftate  of  war,  it 

cannot  be  incident  to  a  partial  ftate,  or  a  particular  modifi¬ 
cation  of  war. 

No*  can  u  evcr  granted,  that  a  power  to  a<T  on  a  cafe 
when  it  aClually  occurs,  includes  a  power  over  all  the  means 
that  may  tend  to  prevent  the  occurrence  of  the  cafe.  Such  a 


(  ) 

fatitude  of  eon?tru£!ion  would  render  unavailing,  every  prae* 
ticable  definition  of  particular  and  limited  powers.  Under 
the  idea  of  preventing  war  in  general,  as  well  as  invafion  it* 
particular,  not  only  an  indifcriminate  removal  of  all  aliens, 
might  he  enforced ;  but  a  thoufand  other  things  ftill  mor® 
remote  from  the  operations  and  precautions  appurtenant  to 
war,  might  take  place.  A  bigoted  or  tyrannical  nation  might 
threaten  us  with  war,  unlefs  certain  religious  or  political  re¬ 
gulations  were  adopted  by  us  ;  yet  it  never  could  be  inferred, 
if  the  regulations  which  would  prevent  war,  were  fuch  as 
Congrefs  had  otherwife  no  power  to  make,  that  the  power  t© 
make  them  would  grow  out  of  the  purpofe  they  were  to  an- 
fwer.  Congrefs  have  power  to  fupprefs  infurredfions,  yet  it 
would  not  be  allowed  to  follow,  that  they  might  employ  all 
the  means  tending  to  prevent  them  ;  of  which  a  fyftem  of 
moral  inftrudHon  for  the  ignorant,  and  of  provident  fupporfc 
for  the  poor,  might  be  regarded  as  among  the  moft  efficacious. 

One  argument  for  the  power  of  the  General  Government 
to  remove  aliens,  would  have  been  palled  in  fiience,  if  it  had 
eppeared  under  any  authority  inferior  to  that  of  a  report  , 
made  during  the  laft  feffion  of  Congrefs,  to  the  Houie  of 
Reprefentatives,  by  a  committee,  and  approved  by  the  houfe. 
The  doflrine  on  which  this  argument  is  founded,  is  ©f  fh 
new  and  fo  extraordinary  a  character,  and  {trikes  io  radically 
at  the  political  fyftem  of  America,  that  it  is  proper  to  flat® 
it  in  the  very  words  of  the  report. 

44  The  a£t  [concerning  aliens]  is  faid  to  be  unconftituti- 
44  onal,  becaufe  to  remove  aliens,  is  a  dire£t  breach  of  the 
4<  conftitution,  which  provides,  by  the  9th  fedtion  of  the  nt 
44  article  :  that  the  migration  or  importation  of  fuch  perfona 
44  as  any  of  the  ftates  {hall  think  proper  to  admit,  ftrall  not  b« 
44  prohibited  by  the  Congrefs,  prior  to  the  year  1808.  ’ 

Among  the  anfwers  given  to  this  objection  to  the  conftt- 
tutionaiity  of  the  a£t,  the  following  very  remarkable  one  23 
extracted. 

44  Thirdly,  that  as  the  conftitution  has  given  to  the  Jtates, 
44  no  power  to  remove  aliens,  during  the  period  ot  the  limi- 
44  tation  under  conftderation,  in  the  mean  time,  on  the  een- 
44  ftruclion  affirmed,  there  would  be  no  authority  in  the 
44  country,  empowered  to  fend  away  dangerous  aliens,  whieft 
44  cannot  be  admitted.” 

The  reafoning  here  ufed,  would  not,  in  any  view,  be  con- 
cdufive  *,  becaufe  there  are  powers  exercifed  by  melt  other 
governments,  which,  in  the  United  States  ate  withheld  by 
the  people,  both  from  the  general  government  and  from  tlie 
ftate  governments.  Of  this  fort  are  many  of  the  powers 


(  22  ) 


prohibited  by  the  Declaration  of  Right  prefixed  to  the  Con- 
Ritutions,  cr  by  the  claufes  in  the  Conftitutions,  in  the  na¬ 
ture  of  fuch  Declarations.  Nay,  fo  far  is  the  political  fyf- 
tem  of  the  United  States  diftinguifhable  from  that  of  other 
countries,  by  the  caution  with  which  powers  are  delegated 
and  defined,  that  in  one  very  important  cafe,  even  of  com¬ 
mercial  regulation  and  revenue,  the  power  is  absolutely 
locked  up  againft  the  hands  of  both  governments.  A  tax  on 
exports  can  be  laid  by  no  Conftitutional  authority  whatever. 
Under  a  fyftem  thus  peculiarly  guarded,  there  could  furely 
be  no  abfurdity  in  fuppofing,  that  alien  friends,  who  if  guilty 
of  treafonable  machinations  may  be  punifhed,  or  if  fufpeCtcd 
on  probable  grounds,  may  be  Secured  by  pledges  or  impri- 
fonment,  in  like  manner  with  permanent  citizens,  were 
never  meant  to  be  fubjedled  to  banifhment  by  any  arbitrary 
and  unufual  procefs,  either  under  the  one  government  or  the 
other. 

But  it  is  not  the  inconclufivenefs  of  the  general  reafoning 
in  this  pafiage,  which  chiefly  calls  the  attention  to  it.  It  is 
the  principle  aiTumed  by  it,  that  the  powrers  held  by  the 
Rates,  are  given  to  them  by  the  conflitution  of  the  United 
States,  and  the  inference  from  this  principle,  that  the  powers 
fuppofed  to  be  neceiiary  which  are  not  fo  given  to  the  Rate 
governments,  mu  ft  refide  in  the  government  of  the  United 
States. 

The  refpeet  which  is  felt  for  every  portion  of  the  Conflx- 
tuted  authorities,  forbids  fome  of  the  reflections  which  this 
lingular  paragraph  might  excite  ;  and  they  are  the  more 
readily  fupprefled,  as  it  may  be  prefumed,  with  juftice  per¬ 
haps,  as  well  as  candour,  that  inadvertence  may  have  had  its 
fhare  in  the  error.  It  would  be  an  unjuftifiahle  delicacy  ne- 
verthelefs,  to  pafs  by  fo  portentous  a  claim,  proceeding  from 
fo  high  an  authority,  without  a  monitory  notice  of  the  fatal 
tendencies  with  which  it  would  be  pregnant, 

Laftly,  it  is  faid,  that  a  law  on  the  fame  fubjeet  with  the 
alien  a£t,  palled  by  this  ftate  originally  in  1785,  and  re- 
enadted  in  1792,  is  a  proof  that  a  fummary  removal  of  fuf- 

ded  by  the  Virginia 
new  ur 

This  charge  againft  Virginia,  vaniftres  before  the  fimple 
remark,  that  the  law  of  Virginia  relates  to  fufpicious  per- 
4C  fons,  being  the  fubje&s  of  any  foreign  power  or  ftate,  who 
**  Riall  have  made  a  declaration  of  war ,  or  actually  commenced 
hojliliiies ,  or  from  whom  the  Prefident  fliall  apprehend 
“■  hoflile  dejigns  /’  whereas  the  a£t  of  Congreis  relates  to 


peCted  aliens,  was  not  heretofore  reg* 
Legiflature  as  liable  to  the  objections 
fuch  a  meafure. 


C  23  ) 

aliens,  being  the  fubje&s  of  foreign  powers  and  Rates,  who 
have  neither  declared  war,  nor  commenced  kojlilities ,  nor  from 
•whom  ho/Hle  defigns  are  apprehended. 

II.  It  is  next  affirmed  of  the  alien  a£t,  that  it  unites  le¬ 
giflative,  judicial  and  executive  powers  in  the  hands  of  the 
prefident. 

However  difficult  it  may  be  to  mark  in  every  cafe,  with 
clearnefs  and  certainty,  the  line  which  divides  legislative 
power,  from  the  other  departments  of  power  ;  ?dl  will  agree, 
that  the  powers  referred  to  thefe  departments  may  be  fo 
general  and  undefined,  as  to  be  of  a  legiflative,  not  of  an 
executive  or  judicial  nature  ;  and  may  for  that  reafon  be  un~ 
conftitutional.  Details,  to  a  certain  degree,  are  efTential  to 
the  nature  and  character  of  a  law  ;  and,  on  criminal  fubjeits, 
it  is  proper,  that  details  fhould  leave  as  little  as  poffible  to 
the  diferetion  of  thofe  who  are  to  apply  and  to  execute  the 
law.  If  nothing  more  were  required,  in  exercifing  a  legif¬ 
lative  trull,  than  a  general  conveyance  of  authority,  without 
laying  down  any  precife  rules,  by  which  the  authority  con¬ 
veyed,  fhould  be  carried  into  effect:  ;  it  would  follow,  that 
the  whole  power  of  legislation  might  be  transferred  by  the 
legiflature  from  itfelf,  and  proclamations  might  become 
fubflitutes  for  laws.  A  delegation  of  power  in  this  la¬ 
titude,  would  not  be  denied  to  be  a  union  of  the  different 
powers. 

To  determine  then,  whether  the  appropriate  powers  of 
the  diftinct  departments  are  united  by  the  aft  authorifing  the 
executive  to  remove  aliens,  it  mufl  be  enquired  whether  it 
contains  fuch  details,  definitions,  and  rules,  as  appertain  to 
the  true  character  of  a  law;  efpecially,  a  law  by  which  per- 
fonal  liberty  is  invaded,  property  deprived  of  its  value  to  the 
owner,  and  life  itfelf  indirectly  expofed  to  danger. 

The  alien  a£t,  declares,  “  that  it  fhall  be  lawful  for  the 
prefident  to  order  all  fuch  aliens  as  he  fhall  judge  dangerous 
to  the  peace  and  fafety  of  the  United  States,  or  fhall  have 
reasonable  ground  to  fufpedf ,  are  concerned  in  any  treafon- 
able,  or  fecret  machinations ,  againft  the  government  thereof* 
£0  depart,”  &c. 

Could  a  power  be  well  given  in  terms  lefs  definite,  lefs 
particular,  and  lefs  precife.  To  be  dangerous  to  the  public 
fafety  ;  to  be  fufpeEted of fecret  machinations  againft  the  govern¬ 
ment  :  thefe  can  never  be  miftaken  for  legal  rules  or  certain 
definitions.  They  leave  every  thing  to  the  Prefident.  His 
will  is  the  law. 

But  it  is  not  a  legiflative  power  only  that  is  given  to  the 
Prefident.  He  is  to  iiand  in  the  place  of  the  judiciary  alfo. 


X  *4  ) 


His  fufpicion  is  the  only  evidence  which  is  to  eonvidt :  Ins 
order  the  only  judgment  which  is  to  be  executed. 

Thus  it  is  the  Prefident  whofe  will  is  to  defignatc  the  of- 
fenfive  conduct  *,  it  is  his  will  that  is  to  afeertain  the  indivi¬ 
duals  on  whom  it  is  charged ;  and  it  is  his  will,  that  is  to 
caufe  the  fentencc  to  be  executed.  It  is  rightly  affirmed 
therefore,  that  the  add  unites  legiflative  and  judicial  poweis 
fco  thofe  of  the  executive* 

III,  It  is  affirmed  that  this  union  of  powers  fubverts  the 
general  principles  of  free  governments. 

It  has  become  an  axiom  in  the  fcience  of  government,  that 
a  reparation  of  the  legislative,  executive  and  judicial  depart¬ 
ments,  is  neceffary  to  the  prefervation  of  public  liberty.  No 
where  has  this  axiom  been  better  underltood  in  theory*  or 
more  carefully  purl’ued  in  practice,  than  in  the  United  States* 

IV,  It  is  affirmed  that  fuch  a  union  of  power  fubverts  the 
particular  organization  and  peutive  provifions  of  the  federal 
Con  (l  i  tut  ion. 

According  to  the  particular  organization  of  the  Confu¬ 
tation,  its  legiflative  powers  are  veiled  in  the  Congrefs  ;  its 
executive  powers  in  the  Prefident,  and  its  judicial  powers, 
in  a  fupreme  and  inferior  tribunals.  The  union  of  any  two 
of  thefe  powers,  and  ftill  more  of  all  three,  in  any  one  of 
thefe  departments,  as  has  been  (hewn  to  be  done  by  the 
alien  adt,  mufl  confequently  fubvert  the  Conflitutional  or¬ 
ganization  of  them. 

That  pofitive  provifions  in  the  Conflitution,  fecuring  to 
individuals  the  benefits  of  fair  trial,  are  alfo  violated  by  the 
union  of  powers  in  the  alien  adt,  necefiarily  refults  from  the 
two  fadts,  that  the  adt  relates  to  alien  friends,  and  that  alien 
friends  being  under  the  municipal  law  only,  are  entitled  to 
its  protedtion. 

The  fecond  objedt  againft  which  the  refolutions  proteft  is 
the  fedition  adt. 

Of  this  adt  is  affirmed  i  ft.  That  it  exercifes  in  like  manner 
a  power  not  delegated  by  the  Conflitution.  2d.  That  the 
power,  on  the  contrary,  is  exprefsly  and  pofitively  forbidden 
by  one  of  the  amendments  to  the  Conflitution.  3d.  That 
this  is  a  power,  which  more  than  any  other  ought  to  produce 
tiulverfai  alarm;  becaufe  it  is  levelled  againft  that  right  of 
Us  ’y  examining  public  charadlers  and  meafures,  and  of  free 
communication  thereon  *,  which  has  ever  been  juftly  deemed 
the  only  efFedlual  guardian  of  every  other  right. 

I.  1  iiat  it  exercifes  a  power  not  delegated  by  the  Confu¬ 
tation. 

Mere,  again  it  will  be  proper  to  recollect,  that  the  Federal 


'-o 


"c  ’ evernment  being  compofed  of  powers  fpecifically  grantee1, 
v/ith  a  refervation  of  all  others  to  the  dates  or  to  the  people, 
the  pofitive  authority  under  which  the  fedition  ad  could  be 
paired  mutt  be  produced  by  thofe  who  albert  its  Conftitu- 
tionalty.  In  what  part  of  the  Conftitution  then  is  this  au¬ 
thority  to  be  found  ? 

Several  attempts  have  been  made  to  anfwer  this  queftion, 
which  will  be  examined  in  their  order.  The  committee 
wiii  begin  with  one,  which  has  filled  them  with  equal  ado- 
r.ihiment  and  apprehenfion  ;  and  which,  they  cannot  but 
perfuade  themfeives,  mult  have  the  fame  effed  on  all,  who 
will  confider  it  with  coolnefs  and  impartiality,  and  w  ith  a 
reverence  for  our  Conftitution,  in  the  true  charader  in 
which  it  iffued  from  the  fovereign  authority  of  the  people. 
The  committee  refer  to  the  dodrine  lately  advanced  as  a 
f  mdion  to  the  fedition  ad  :  u  that  the  common  or  unwritten 
law,"7  a  law  of  vaft  extent  and  complexity,  and  embracing 
si  mo  It  every  poiTible  fubied  of  legiilation,  both  civil  and 
criminal,  u  makes  a  part  of  the  lav/  of  thefe  Rates ,  in  their 
united  and  national  capacity  71 

The  novelty,  and  in  the  judgment  of  the  committee,  the 
extravagance  of  this  pretenfion,  would  have  configned  it  to 
the  lilence,  in  which  they  liave  palled  by  other  arguments, 
which  an  extraordinary  zeal  for  the  ad  has  drawn  into  the 
difeuffion.  But  the  aufpices,  under  which  this  innovation 
prefects  itfelf,  have  conftraincd  the  committee  to  bellow  on 
it  an  attention,  which  other  conliderations  might  have 
forbidden. 

In  executing  the  talk,  it  may  be  of  ufe.  to  look  back  to  the 
.colonial  Hate  of  this  country,  prior  to  the  revolution  ;  to 
trace  the  effed  of  the  revolution  which  converted  the  colo¬ 
nies  into  independent  Rates  ;  to  enquire  into  the  import  of 
the  articles  of  confederation,  the  hr  ft  inftrument  by  which 
the  union  of  the  Hates  was  regularly  eftablifhed  j  and  finally 
to  conlult  the  Conftitution  of  1788,  which  is  the  oracle  that 
mu  ft  decide  the  important  queftion. 

In  the  ftate  prior  to  the  revolution,  it  is  certain  that  the 
.common  law  under  different  limitations,  made  a  part  of  the 
colonial  codes.  But  whether  it  be  underftood  that  the  ori¬ 
ginal  colonifts  brought  the  law  with  them,  or  made  it  their 
law  by  adoption  ;  it  is  equally  certain  that  it  was  the  feparate 
law  of  each  colony  within  its  refpechve  limits,  and  was  un¬ 
known  to  them,  as  a  lavv  pervading  and  operating  through 
the  whole,  as  one  fociety. 

It  could  not  poflibly  be  otherwife.  I  he  common  iaw  was 
ot  the  fame  in  any  two  of  the  colonies  ,  in  iome,  the  modi- 

D 


£ 


a 


locations  were  materially  and  extenfivcly  different.  There 
was  no  common  legiflature,  by  which  a  common  will,  could 
be  expreffed  in  the  form  of  a  law  5  nor  any  common  mag-f- 
tracy,  by  which  fuch  a  law  could  be  carried  into  practice. 
The  will  of  each  colony  alone  and  feparately,  had  it?  organs 
for  thefe  purpofes. 

This  ftage  of  our  political  hiftory,  fuvnifhes  no  foothold 
for  the  patrons  of  this  new  doctrine. 

Did  then,  the  principle  or  operation  of  the  great  event 
which  made  the  colonies  independent  Hates,  imply  or  intro¬ 
duce  the  common  law,  as  a  law  of  the  union  ? 

The  fundamental  principle  of  the  revolution  was,  that  the 
colonies  were  co-ordinate  members  with  each  other,  and 
with  Great-Britain  ,  of  211  Empire,  united  by  a  common 
Executive  Sovereign,  but  not  united  by  any  common  Legif- 
lative  Sovereign.  The  Legiflative  power  was  maintained  to 
be  as  complete  in  each  American  Parliament,  as  in  the  Bri- 
tilh  Parliament.  And  the  royal  prerogative  was  in  force  in 
each  colony,  by  virtue  of  its  acknowledging  the  King  for  its 
Executive  Magistrate,  as  it  was  in  Great-Britain,  by  virtue  of 
a  like  acknowledgment  there,  A  denial  pf  thefe  principles  by 
Great-Britain,  and  the  affertion  of  them  by  America,  pro¬ 
duced  the  revolution., 

There  was  a  time  indeed,  when  an  exception  to  the  Le¬ 
gislative  feparation  of  the  feverai  component  and  co-equal 
parts  of  the  Empire,  obtained  a  degree  of  acquiescence.  The 
Britifh  Parliament  was  allowed  to  rep-ulate  the  trade  with 

1  O 

foreign  nations,  and  between  the  different  parts  of  the  Em¬ 
pire,  I  his  was  however  mere  practice  without  right,  and 
contrary  to  tire  true  theory  of  the  Conftitution.  The  cori- 
venieney  of  fome  regulations  in  both  thofe  cafes,  was  appa¬ 
rent  ;  and  as  there  was  no  Legiflature  with  power  over  the 
whole,  nor  any  Conftitutional  pre-eminence  among  the  Le- 
giilaturcs  of  the  feverai  parts  ;  it  was  natural  for  the  Legif¬ 
lature  of  that  particular  part  which  was  the  cldc  ft  and  the 
largeft,  to  affume  this  function,  and  lor  the  others  to  ac- 
cp'.idce  in  it.  T  his  tacit  arrangement  was  the  lefs  criticifed, 
as  the  regulations  eftabliihed  by  the  Britifh  Parliament, 
operated  in  favour  of  that  part  of  the  Empire,  which  feemed 
to  bear  the  principal  lhare  of  the  public  burdens,  and  were 
regarded  as  an  indemnification  of  its  advances  for  the  other 
parts.  As  long  as  this  regulating  power  was  confined  to 
the  two  objedfts  cf  convcniency  and  eciuitv,  it  was  not  com- 
plained  of,  nor  much  enquired  into.  But  no  fooner  was  it 
perverted  to  the  felfifh  views  of  the  party  afTuming  it,  than 
the  injured  parties  began  to  feel  and  to  re  Be  61 ,  and  the  mo- 


C  27  ) 


Vrsent  the  claim  to  a  cl  ire  61  and  indefinite  power  was  in¬ 
grafted  on  the  precedent  of  the  regulating  power,  the  whole 
charm  was  diilbived,  and  every  eye  opened  to  the  usurpation. 
The  aflertion  by  G.  B.  of  a  power  to  make  laws  for  the  Em¬ 
pire  in  all  cafes  vohatfoeyer ,  ended  in  the  difeovery,  that  file  had 
a  right  to  make  laws  for  them,  in  no  cafes  wha  fever. 

Such  being  the  ground  of  our  revolution,  no  fupport  nor 
colour  can  be  drawn  from  it,  for  the  do&rine  that  the  com¬ 
mon  law  is  binding  on  thefe  States  as  one  focietv.  The 
doctrine  on  the  contrary,  is  evidently  repugnant  to  the  fun- 

«  •  4  '  J  *.  O 

camental  principle  of  the  revolution. 

The  articles  of  confederation,  are  the  next  Source  of  in¬ 
formation  on  this  fubjeCt. 

In  the  interval  between  the  commencement  of  the  revo¬ 
lution,  and  the  final  ratification  of  thefe  articles,  the  nature 
and  extent  of  the  union  was  determined  by  the  c  ire  urn  fiances 
of  the  cribs,  rather  than  by  any  accurate  delineation  of  the 
general  authority.  It  will  not  be  alleged  that  the  <fi  common 
law,”  could  have  had  any  legitimate  birth  as  a  law  of  the 
United  States,  during  that  (late  of  things.  If  it  came  as 
fuch,  into  exiflence  at  all,  the  charter  of  confederation  mull: 
have  been  its  parent. 

Here  again,  however,  its  pretenfions  are  abfolutely  defti- 
tute  of  foundation.  This  inflrument  does  not  contain  a  fen- 
tence  or  fyllable,  that  can  be  tortured  into  a  countenance  of 
the  idea,  that  the  parties  to  it  were  with  refpedl  to  the  objedls 
of  the  common  law,  to  form  one  community.  No  fuch  law 
is  named  or  implied,  or  alluded  to,  as  being  in  force,  or  as 
brought  into  force  by  that  compatl.  No  proviben  is  made 
by  which  fuch  a  law  could  be  carried  into  operation  ;  whilfl 
on  the  other  hand,  every  fuch  inference  or  pretext  is  abfo¬ 
lutely  precluded,  by  article  2d,  which  declares,  “  that  each 
(late  retains  its  fovereignty,  freedom  and  independence,  and 
every  power,  jurifdiclion  and  right,  which  is  not  by  this  con¬ 
federation  exprefsly  delegated  to  the  United  States  in  Cou- 
grefs  aflembled.” 

Thus  far  it  appears,  that  not  a  veflige  of  this  extraordinary 
doSlrine  can  be  found,  in  the  origin  or  progrefs  of  American 
inflitutions.  The  evidence  againft  it,  has,  on  the  contrary, 
grown  ftronger  at  every  flep  *,  till  it  has  amounted  to  a  formal 
and  pofitive  exclufion,  by  written  articles  of  compaEt  among 
the  parties  concerned. 

Is  this  exclufion  revoked,  and  the  common  law  intro¬ 
duced  as  a  national  law,  by  the  prefent  Conftitution  of  the 
United  States  ?  This  is  the  final  queftion  to  be  examined. 

It  is  readily  admitted,  that  particular  parts  of  the  commoa 


(  2  8'  y 


law,  may  have  a  fancU-m  from  the  Confutation,  fo  far  as 
they  are  necrflarily  comprehended  in  the  technical  phrafes 
which  expreis  the  powers  delegated  to  the  government;  and 
fo  far  a!fo,  as  fuch  other  parts  may  be  adopted  by  Congrefs 
as  necefiary  and  proper,  for  carrying  into  execution  the 
powers  exprefsly  delegated.  But  the  question  does  not  re¬ 
late  to  eitl  er  ot  thefe  portions  of  the  common  law.  It  re¬ 
lates  to  the  common  law,  beyond  thefe  limitations. 

The  only  part  of  the  Conftitution  which  feems  to  have 
been  relied  on  in  this  cafe,  is  the  2d  lecl,  of  art.  III* 
“  The  judicial  power  dial  I  extend  to  all  cafes,  in  law  and 
4i  equity,  arifing  under  this  Conjlitution ,  laws  of  the  United 
u  States,  and  treaties  made  or  which  fhall  be  made  under 
“  their  authority. ” 

It  has  been  a  feed  what  cafes  diftindl  from  tliofe  arifing. 
under  the  laws  and  treaties  of  the  United  States,  can  arife 
under  the  Conftitution,  other  than  thoffi  arifing  under  the 
common  law  ;  and  it  is  inferred,  that  the  common  law  is 
accordingly  adopted  or  recognized  by  the  Conftitution. 

Never  perhaps  was  fo  broad  a  conflruclion  applied  to  m 
text  fo  clearly  urTufcepfible  of  it.  If  any  colour  for  the  in¬ 
ference  could  be  found,  it  muft  be  in  the  impc-ffibility  of 
hading  any  other  cafes  in  lav/  and  equity,  within  the  provi- 
ft  m  or  the  Conititution,  to  fatisfy  the  expreffion ;  and  rather 
than  refort  to  a  conftrudlion  afFeding  fo  cflentially  the  wh  le 
•charadter  of  the  government,  it  would  perhaps  be  more  ra¬ 
tional  to  confuler  the  expreffion  as  a  mere  pleonafm  or  in¬ 
advertence,  But  it  is  not  neccffiiry  to  decide  on  fuch  a  di¬ 
lemma.  i  no  expreffion,  is  fully  fatisfted,  and  its  accuracy 
ju (lifted,  by  two  deferiptions  of  cafes,  to  which  the  judicial 
authority  is  extended,  and  neither  of  which  implies  that  the 
common  law  is  the  law  of  the  United  States,  One  of  thefe 
deferiptions  comprehends  the  cafes  growing  out  of  the  ref. 
trichons  on  the  legifiative  power  of  the  Rates.  For  exam¬ 
ple,  his  provided  that  44  no  Rate  (hail  emit  bills  of  credit,0 
or  v'  any  thing  but  gold  and  ft lv.er  coin  a  tender  in  pay- 
rr:-'nr  01  debts.5-  Bhould  this  prohibition  be  violated,  and  a 
"*■  iC  ween  citizens  f  the  fame  flats  be  the  conftquence  this 
\v oulj  oe  a  cafe  arifing  under  the  Conftitution  before  the 
jv  uc.a.^por  ei  or  the  United  States.  A  ft  con  d  deferiptioa 
compimianus  Uats  bet  w  een  citizens  and  foreigners,  or  citi- 
z-ni.  of.diftercnt  dates.  to  be  decided  according  to  the  Rate 
Gi  1  laws»  ^ut  fu  limit  ted  by  the  Co.nfti  ution  to  the 

judicial  power  ol  the  United  Star,  s;  Be  judicial  power  be- 

1 5  yeral  inRances,  extended  beyond  the  ieriflative 
pov\cr  ox  tiie  United  States. 


2(J  } 


To  this  explanation  of  the  text,  the  following  obfervations 

may  be  added. 

The  exp  (lion  cafes  in  law  and  equity,  is  manifeftly  con¬ 
fined  to  <:  T  s  of  a  civil  nature  ;  and  wou  d  exclude  cafes  of 
criminal  jurifdi&ion.  Criminal  cafes  in  law  and  equity, 
would  be  a  iaftguagt  unknown  to  the  law. 

1  he  fucceeding  paragraph  of  the  fame  fe&'ion,  is  in  har¬ 
mony  wi  his  conftrubtion,  It  is  in  thefe  words —  s  In' all 
cafes  affcdlmg  ambaffadors,  other  public  minifters  and  con- 
fuls,  and  thofe  in  which  a  ftate  (hail  be  a  party,  the  Supreme 
C  art  (hall  have  original  jurifdiUion.  In  all  tl le  other  cafes 
[inciu:  big  calcs  in  law  and  equity  anfing  under  the  Con [ti- 
tutio  j  the  Supreme  C  ourt  fhall  leave  appellate  jurifcii&ion 
'be--. ;  as  to  law  and  fact;  with  fuch  exceptions,  and  under 
fuch  regulations  as  Congrefs  (hall  make T 

O  o 

his  paragraph  by  exorefsly  giving  an  at  pel  late  iurifdi£lion? 
in  cafes  of  law  and  equity  ai  ding  undi  the  Conftitution,  to 
fact  as  well  as  :o  3a  -.  clearly  excludes  criminal  caies  where 
t  e  trial  by  jury  is  fecured  ;  becaufe  the  fa£t,  in  fuch  cafes, 
is  ;><»t  a  iff  jecl  of  appeal.  nd  although  the  appeal  is  liable 
So  'loch  exceptions  and  regulations  as  Congrefs  may  adopt; 
y;  n  is  noi  to  be  fuppofed  that  an  exception  of  ail  criminal 
caies  could  be  contemplated ;  as  well  becaufe  a  difcretion  u 
Congrefs  to  make  or  omit  the  exception  would  be  improper  ; 
as  becaufe  it  would  have  been  unneceffary.  The  exception 
could  as  eafdy  have  been  made  by  the  Conftitution  ltfeif,  as 
referred  to  the  Congrefs. 

Once  more,  the  amendment  laft  added  to  the  Conftitu¬ 
tion,  deferves  attention,  as  throwing  light  on  this  fubjeeh 
44  The  judicial  power  of  the  United  States  (hall  not  be  con- 
ftrued  to  extend  to  any  fuit  in  law  or  equity ,  commenced  or 
profecuted  againft  one  of  the  United  Spates,  by  citizens  of 
another  ftate,  or  by  citizens  or  fubjedls  of  any  foreign  power.” 
As  it  will  not  be  pretended  that  any  criminal  proceeding 
could  take  place  againft  a  date  ;  the  terms  law  or  equity ,  mult 
be  underflood  as  appropriate  to  civil  in  exclufion  of  criminal 
cafes. 

From  thefe  confiderations,  it  is  evident,  that  this  part  of 
the  Conftitution,  even  if  it  could  he  applied  at  all,  to  the 
purpofe  for  which  it  has  been  cited,  would  nor.  include  any 
cafes  whatever  of  a  criminal  nature  *,  and  confequently, 
would  not  authorife  the  inference  from  it,  that  the  judicial 
authority  extends  to  offences  againft  the  common  law,  as 
offences  arifing  under  the  Conftitution, 

It  is  further  to  be  confidered,  that  even  if  this  part  of  the 
Conftitution,  could  be  (trained  into  an  application  to  every 


t  3°  ) 

sommon  law  cafe,  criminal  as  well  as  civil,  it  could  have  rs> 
effect  in  juftifying  the  fedition  afflj  which  is  an  exercife  of 
legislative,  and  not  of  judicial  power  :  and  it  is  the  judicial 
power  only  of  which  the  extent  is  defined  in  this  part  of  the 
Conftitution. 

There  are  two  p adages  in  the  Conftitution,  in  which  a  clef- 
criptiori  of  the  law  of  tne  United  States  is  found — The  firfl  is 
contained  in  article  III.  fefil.  2,  in  the  words  following:  “This 
Conftitution,  the  laws  of 'the  United  States,  and  treaties 
made,  or  which  (hall  be  made  under  their  authority.5'  The 
feccnd  is  contained  in  the  2d  paragraph  of  art.  VI.  as  fol¬ 
lows  :  “  This  Conftitution  and  the  laws  of  the  United  States 
which  {hall  be  made  in  purfuance  thereof,  and  all  treaties 
made,  or  which  (hall  be  made  under  the  authority  of  the 
United  States,  fhall  be  the  fupreme  law  of  the  land.”  The 
fivft  of  thefe  descriptions  was  meant  as  a  guide  to  the  judges 
of  the  United  States  ;  the  fecond  as  a  guide  to  the  judges  in 
the  feveral  dates.  Both  of  them  eon  fit  of  an  enumeration, 
which  was  evidently  meant  to  be  preciie  and  compleat.  If 
the  common  law  had  been  understood  to  be  a  law  of  the 
United  States,  it  is  not  pofilhle  to  affign  a  fatisfadlory  rea- 
foa  whv  it  was  not  expreffed  in  the  enumeration. 

la  aid  of  thefe  cbjedtions,  the  difficulties  and  confufion 
infeparable  from  a  conflruclive  introdudlion  of  the  common 
law,  would  afford  powerful  reafons  agairdi  it. 

Is  it  to  be  the  common  law  with,  or  without  the  Rritifh 
flatutes  ? 

If  without  the  flatutory  amendments,  the  vices  of  the 
code  would  be  infupportable. 

If  with  thefe  amendments,  what  period  is  to  be  fixed  for 
Unfitting  the  Britiih  authority  over  our  laws  ? 

Is  it  to  be  the  date  of  the  eldefl  or  the  youngcfl  cf  the  co¬ 
lonies  ? 

Or  are  the  dates  to  he  thrown  together,  and  a  medium 


/ 1  r-  i  n  ^  ^  ? 

ki  v.  .  U  v  ,  vi  ; 


Or  is  our  independence  to  be  taken  for  the  date  ? 

Is,  again,  regard  to  he  had  to  the  various  changes  in  the 
common  law  made  by  the  local  codes  of  America  ? 

h  regard  to  be  had  to  fuch  changes,  fubftquent,  as  well 
as  prior,  to  the  eftabliffiment  of  the  Conftitution  ? 

Is  regard  to  be  had  to  future,  as  well  as  pail  changes  ? 

Is  the  law  to  be  different  in  every  flats,  as  differently  mo- 
d hied  by  its  code  :  or  are  the  modifications  of  any  particular 
flate,  to  be  applied  to  all  ? 

And  on  the.  latter  fupoofiiion,  which  among  the  flate 

A  1  7  O 

codes  would  rorm  die  ftandard  ? 


t 

{ 


31 


) 


Queftions  of  this  fort  might  be  multiplied  with  as  much 
cafe,  as  there  would  be  difficulty  in  anfwering  them. 

The  confequenees  flowing  from  the  propoled  conftruc- 
tion,  furnifh  other  objections  equally  conclufive  ;  unlefs  the 
text  were  peremptory  in  its  meaning,  and  confident  with 
other  parts  of  the  inftrument. 

Tliefe  confequenees  may  be  in  relation  to  the  legiflative 
authon  y  of  the  United  States  ;  to  the  executive  authority  ; 
to  the  judicial  authority,  and  to  the  governments  of  the  fe- 
veral  dates. 

if  it  be  underftood  that  the  common  law  is  cftablifhed  by 
the  Conftitution,  it  follows  that  no  part  of  the  law  can  be 
altered  by  the  legiflature  ;  fu'ch  of  the  datutes  already  pafied 
as  may  be  repugnant  thereto,  would  be  nullified,  particu¬ 
larly  the  t'*  fedition  a 61”  itfelf,  which  boads  of  being  a  me¬ 
lioration  of  the  common  law  *,  and  the  whole  code  with  all 
its  incongruities,  barbarifnts,  and  bloody  maxims  would  be 
inviolably  faddled  on  the  good  people  of  the  United  States, 

Should  this  confequence  be  rejected,  and  the  common  law 
be  held,  like  other  laws,  liable  to  revilion  and  alteration,  by 
the  authority  of  Congrefs  ;  it  then  follows,  that  the  autho¬ 
rity  of  Congrefs  is  co-extenfive  with  the  ob  eels  of  common 
law ;  that  is  to  fay,  with  every  object  of  legiflation  :  For 
to  every  fuch  object,  does  fome  branch  or  other  of  the  com¬ 
mon  law  extend.  The  authority  of  Congrefs  would  there¬ 
fore  be  no  longer  under  the  limitations,  marked  out  in  the 
Conftitution.  They  would  be  authorifed  to  legiflate  in  all 
cafes  what  foe  ver. 

In  the  next  place,  as  the  President  poflefles  the  executive 
powers  of  the  Conftitution,  and  is  to  fee  that  the  laws  Ire 
faithfully  executed  his  authority  alfo  muft  be  co-extenfive 
with  every  branch  of  the  common  law.  1  he  additions  which 
this  would  make  to  his  power,  though  not  readily  to  be  es¬ 
timated,  claims  the  molt  ferious  attention. 

This  is  not  all  •,  it  will  merit  the  molt  profound  confide- 
ration,  how  far  an  indefinite  admiflion  of  the  common  law, 
with  a  latitude  in  conftruing  it,  equal  to  the  conftruCtion  by 
which  it  is  deduced  from  the  Conftitution,  might  draw  after 
it  the  various  prerogatives  making  part  of  the  unwritten  law 
of  England.  The  Englifh  Conftitution  itfelf  is  nothing  more 
than  a  compofirion  of  unwritten  laws  and  maxims. 

In  the  third  place,  whether  the  common  law  be  admitted 
as  of  legal  or  of  Conftitutional  obligation,  it  would  confer 
on  the  judicial  department  a  diicretion  little  fhort  of  a  legis¬ 
lative  power. 

On  the  fuppofition  of  its  having  a  Conftitutional  obliga- 


(  S2  ) 


tlon,  this  power  in  the  judges  would  bo  permanent  and  ir¬ 
remediable  by  the  legiflature.  On  the  other  fuppofition, 
the  power  would  not  expire,  until  the  legillature  fhould. 
have  introduced  a  full  fyftem  of  ftatutory  provifions.  Let 
it  be  obferved  too,  that  betides  all  the  unc<  rtai  ties  above 
enumerated,  and  which  prefent  an  immenfe  field  tor  judicial 
diferetion,  it  would  remain  with  the  fame  depaf  ment  to  de¬ 
cide  what  parts  of  the  common  law  would  and  whar  would 
not,  be  properly  applicable  to  the  circumftawces  of  the 
United  States. 

A  diferetion  of  this  fort,  has  always  been  Jam  nted  as  in- 
congruous  and  dangerous,  even  in  the  coloni  .  l  and  it  ate 
courts  ;  although  fo  much  narrowed  by  pofitive  pr  vif  s  in 
the  local  codes  on  all  the  principal  iubjeCts  emb raced  by  the 
common  law.  Under  the  United  Stares,  where  fo  few  laws 
efcift  on  thofe  fubjects,  and  where  fo  great  a  lapf  of  time 
mult  happen  before  the  vaft  chafm  could  be  ftippiied,  it  is 
manifeft  that  the  power  of  the  judges  over  the  law  would, 
in  fa£l,  ere£t  them  into  legiflators  ;  and  that  fora  long  time, 
it  would  be  i-mpoffible  for  the  citizens  to  conje6lure,  either 
what  was,  or  would  be  law. 

In  the  lafl  place,  the  confequence  of  admitting  the  com¬ 
mon  law  as  the  law  of  the  United  States,  on  the  authority  of 
the  individual  ftates,  is  as  obvious  as  it  would  be  fatal.  As 
this  law  relates  to  every  fubjeCl  of  legillation,  and  would  be 
paramount  to  the  Confutations  and  law’s  of  the  dates  ;  the 
admiflion  of  it  would  overwhelm  the  refiduary  fovereignty 
of  the  ftates,  and  by  one  conflrudtive  operation  new  model 
the  whole  political  fabric  of  the  country. 

From  the  review  thus  taken  of  the  fituation  of  the  Ameri¬ 
can  colonies  prior  to  their  independence;  of  the  efFcCl  of  this 
event  on  their  fituation  ;  of  the  nature  and  import  of  the 
articles  of  confederation  ;  of  the  true  meaning  of  the  p adage 
in  the  exifting  Conftitution  from  which  the  common  law  has 


been  deduced  ;  of  the  difficulties  and  uncertainties  incident 
to  the  doCtrine  ;  and  of  its  vaft  confequences  in  extending  the 
powers  of  the  federal  government,  and  in  fuperceding  the 
authorities  of  the  ftate  governments  ;  the  committee  feel  the 
utmoft  confidence  in  concluding  that  the  common  law  never 
was,  nor,  by  any  fair  conftrudXion,  ever  can  be,  denied  a 
Jaw  for  the  American  people  as  one  community;  and  they 
uidulge  the  ftrongeft  expectation  that  the  fame  condufion 
wid  finally  be  drawn,  by  all  candid  and  accurate  enquirers 
into  the  fuhjeCb.  It  is  indeed  diftrefling  to  reflect,  that ’t 
ever  fhould  have  been  made  a  queftion,  whether  the  Con  ft  i- 
tution,  on  the  whole  face  of  which  is  feen  fo  much  labour  to 


(  33  ' 


enumerate  and  define  the  feveral  obje6ls  of  federal  power^ 
could  intend  to  introduce  in  the  lump,  in  an  indirect  man¬ 
ner,  and  by  a  forced  conftruclion  of  a  few  pln  afes,  the  vail 
and  multifarious  jurifdidtion  involved  in  the  common  law;  a 
law  filling  fo  many  ample  volumes  ;  a  law  overfpreading  the 
entire  field  of  legiflation ;  and  a  law  that  would  lap  the 
foundation  of  the  Con  dilution  as  a  fyftem  of  limited  and  fpe- 
eified  powers.  A  feverer  reproach  could  not  in  the  opinion 
of  the  committee  be  thrown  on  the  Conftitution,  on  thole 
who  framed,  or  on  thofe  who  eftabliftied  it,  than  fuch  a  fup- 
pofition  would  thre  w  on  th  m. 

The  argument  then  drawn  from  the  common  law,  on  the 
ground  of  its  being  adopted  or  recognized  by  the  Conftitution, 
being  inapplicable  to  the  Sedition  act,  the  committee  will 
proceed  to  examine  the  other  arguments  which  have  been 
founded  cn  the  Conftitution. 

They  will  wafte  but  little  time  on  the  attempt  to  cover  the 
a 61  by  the  preamble  to  the  conftitution ;  it  being  contraiy  to 
every  acknowledged  rule  of  couft  ruction,  to  let  up  this  part 
of  an  inftrument,  in  oppofition  to  the  plain  meaning,  ex- 
prefled  in  the  body  of  the  inftrument.  A  preamble  ufually 
contains  the  general  motives  or  reafons,  for  the  particuiar 
regulations  or  meafures  which  follow  it;  and  i-;  always  un- 
derftood  to  be  explained  and  limned  by  them.  In  the  pre- 
fent  inftance,  a  contrary  interpretation  would  have  the  in- 
admilFible  efre6l,  of  rendering  nugatory  or  improper  ,  every 
part  of  the  Conftitution  which  fucceeds  the  preamble. 

The  paragraph  in  art,  i,  feel.  8,  which  contains  the  power 
to  lay  and  collect  taxes,  duties  impofts,  and  excifes,  to  pay 
the  debts,  and  provide  for  the  common  defence  and  general 
welfare,  having  been  already  examined,  will  alfo  require  no 
particular  attention  in  this  place.  It  will  have  been  l'een  that 
in  its  fair  and  confident  meaning,  it  cannot  enlarge  the  enu¬ 
merated  powers  veiled  in  Congrels. 

The  part  of  the  Conftitution  which  feems  moft  to  be  re¬ 
curred  to,  in  defence  of  the  “  Sedition  A61T  is  the  laft 
claufe  of  the  above  fedtion,  empowering  Congrefs  to  make 
all  laws  which  ftiall  be  neceflary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  veiled 
by  this  Conftitution  in  the  government  of  the  United  States, 
or  i:i  any  department  or  officer  thereof.” 

The  plain  import  of  this  claufe  is.,  that  Congrefs  ftiall  have 
all  the  incidental  or  inftrumental  powers,  neceftary  and  pro¬ 
per  for  carrying  into  execution  all  the  exprefs  powers  ;  whe¬ 
ther  they  be  veiled  in  the  government  of  the  United  States, 
more  collectively,  or  in  the  feveral  departments,  or  officers 

E 


(  34  ) 


thereof.  It  is  not  a  grant  of  new  powers  to  Congrefs,  hut 
merely  a  declaration,  fertile  removal  of  all  uncertainty,  that 
the  means  of  carrying  into  execution,  thofe  gxherwife  granted, 
are  included  in  the  grant. 

Whenever,  therefore  a  queflion  arifes  concerning  thecon- 
flitutionalty  of  a  particular  power  ;  the  fir  ft  queflion  is, 
whether  the  power  be  expreffed  in  the  Conflitution.  If  it  be, 
the  queflion  is  decided.  If  it  be  not  expreffed  ;  the  next 
enquiry  muft  be,  whether  it  is  properly  an  incident  to  an 
exprefs  power,  and  neceffary  to  its  execution.  If  it  he,  it 
may  be  exercifed  by  Congrefs.  If  it  be  not,  Congrefs  can¬ 
not  exefeife  it. 

Let  the  queflion  be  afked,  then,  whether  the  power  over 
the  prefs  exercifed  in  the  44  fedition  a£t,”  be  found  among 
the  powers  exprefsly  veded  in  the  Congrefs  ?  This  is  not 
pretended. 


Is  there  any  exprefs  power,  for  executing  which,  it  is  a 
neceffary  and  proper  power  ? 

The  power  which  has  been  felccled,  as  lead  remote,  in 
anfwer  to  this  queflion,  is  that  of  44  fuppreding  infumcli- 
ons  which  is  faid  to  imply  a  power  to  prevent  Infurreeiions, 
by  punifhing  whatever  may  lead  or  tend  to  them.  But  it 
iurely  cannot,  with  the  lead  plaufibility,  be  faid,  that  a  re¬ 
gulation  of  the  prefs,  and  a  punidiment  of  libels,  are  exer- 
cifes  of  a  power  to  fupprefs  infurre&ions.  The  mod  that 
could  be  faid,  would  be,  that  the  punidiment  of  libels,  if  it 
had  the  tendency  aferibed  to  it,  might  prevent  the  occafion, 
of  palling  or  executing  laws,  neceffary  and  proper  for  the 
fuppreffion  of  infurreeiions. 

Has  the  federal  government  no  power,  then,  to  prevent 
as  well  as  to  punifh  refi dance  to  the  laws  ? 

They  have  the  power  which  the  Conditution  deemed 
mod  proper  in  their  hands  for  the  purpofe.  The  Congrefs 
has  power,  before  it  happens,  to  pafslaws  for  punifhing  it ; 
and  the  Executive  and  judiciary  have  power  to  enforce  thofe 
laws  when  it  does  happen. 

It  mud  be  recollecled  by  many,  and  could  be  {hewn  to 
the  fatisfaction  of  all,  that  the  condruCcion  here  put  on  the 
terms  8  neceffary  and  proper,’  is  precifeJy  the  ccndrmTion 
which  prevailed  during  the  difeu (lions  and  ratifications  of  the 
Conditution.  It  may  be  added,  and  cannot  too  often  be  re¬ 
peated,  that  it  is  a  condrudlion  abfolutely  neceffary  to  main¬ 
tain  their  conddency  with  the  peculiar  character  of  the  go¬ 
vernment,  as  podeffed  of  particular  and  defined  powers  only  ; 
not  of  the  general  and  indefinite  powers  veded  in  ordinary 
governments,  l  or  if  the  power  to  fupprefs  hfurredi ionsi  in- 


35  ) 


eludes  a  power  to  punl/b  libels ;  or  if  the  power  to  punijb , 
includes  a  power  to  prevent ,  by  all  the  means  that  may  have 
that  tendency ,  fuch  is  the  relation  and  influence  among  the. 
molt  remote  fubje&s  of  legiflations,  that  a  power  over  a  very- 
few,  would  carry  with  it  a  power  over  all.  And  it  mult 
be  wholly  immaterial,  whether  unlimited  powers  be  exer- 
cifed  under  the  name  of  unlimited  powers,  or  be  exercifed 
under  the  name  of  unlimited  means  of  carrying  into  execu¬ 
tion,  limited  powers. 

This  branch  of  the  fubjeft  will  be  clofed  with  a  reflection 
which  muft  have  weight  with  all  ;  but  more  efpecially  with 
thofe  who  place  peculiar  reliance  on  the  Judicial  expofltion 
of  the  conftitution,  as  the  bulwark  provided  againft  undue 
extenfions  of  the  Legiflative  power.  If  it  be  underftood  that 
the  powers  implied  in  the  fpecified  powers,  have  an  im¬ 
mediate  and  appropriate  relation  to  them,  as  means,  necef- 
fary  and  proper  for  carrying  them  into  execution,  queftions 
on  the  conftitutionality  of  laws  patted  for  this  purpofe,  will 
be  of  a  nature  fufhciently  preciie  and  determinate  for  Judi¬ 
cial  cognizance  and  control.  If,  on  the  other  hand,  Congrefs 
are  net  limited  in  the  choice  of  means  by  any  fuch  appro¬ 
priate  relation  of  them  to  the  fpecified  powers  ;  but  may  em¬ 
ploy  all  fuch  means  as  they  may  deem  fitted  to  prevent  as 
well  as  to  pimifJj,  crimes  fubjeCted  to  their  authority  ;  fuch 
as  may  have  a  tendency  only  to  promote  an  objeCl  for  which 
they  are  authorized  to  provide  ;  every  one  mull  perceive  that 
queftions  relating  to  means  of  this  fort,  muft  be  queftions 
of  mere  policy  and  expediency;  on  which  legiflative  dilcre- 
tion  alone  can  decide,  and  from  which  the  judicial  interpo- 
fition  and  control  are  completely  excluded. 

IL  The  next  point  which  the  refolutiori  requires  to  be 
proved,  is,  that  the  power  over  the  prefs  exercifed  by  the 
fedition  a<T,  is  pofitively  forbidden  by  one  of  the  amendments 
to  the  Conftitqtion. 

The  amendment  ftands  in  thefe  w^ords — u  Congrefs  fhall 
make  no  law  refpedling  an  eftablifhment  of  religion,  or  pro¬ 
hibiting  the  free  exercife  thereof,  or  abridging  the  freedom  cf 
fpeech  or  of  the  prefs  ;  or  the  right  of  the  people  peaceably  to 
attemble,  and  to  petition  the  government  for  a  rediefs  of 
grievances,” 

In  the  attempts  to  vindicate  the  u  Sedition  adl,”  it  has 
been  contended,  i.  i  hat  the  44  freedom  of  the  prefs  is  to 
be  determined  by  the  meaning  oi  thefe  terms  in  the  common 
law.  2.  That  the  article  fuppofes  the  power  over  the  prels 
to  be  in  Congrefs,  and  prohibits  them  oniy  from  abridging  tne 
freedom  allowed  to  it  by  the  common  law. 


(  3«  ) 


Although  It  will  be  {hewn,  in  examining  the  fecond  of 
theft:  positions  that  the  amendment  is  a  denial  to  Congrefs 
of  all  power  over  the  prefs  ;  it  may  not  be  ufelefs  to  make 
the  following  obferv  .Tons  on  the  fir  ft  of  them. 

It  is  deemed  to  be  a  found  opinion,  that  the  fedition  a£t, 
in  its  definition  ot  fome  of  the  crimes  created,  is  an  abridg¬ 
in'  nt  of  the  freedom  of  publication,  recognized  by  principles 
of  the  common  law  in  England. 

The  treedom  of  the  prefs  under  the  common  law,  is,  in  the 
defences  of  the  fedition  ntd,  made  to  con  lift  in  an  exemption 
from  all  previous  reftraint  on  printed  publications,  by  perfens 
authorized  to  infpedl  and  prohibit  them.  It  appears  to  the 
committee  that  this  idea  of  the  freedom  of  the  prefs,  can 
never  be  admitted  to  be  the  American  idea  of  it :  fince  a  law 
inffidlhig  penalties  on  printed  publications,  would  have  a 
fimilar  effect  with  a  law  authors  zi  ;g  a  previous  reftraint  on 
them.  It  would  teem  a  mockery  to  fay  that  no  law  fhould 
be  paffed,  preventing  publications  from  being  made,  but 
that  laws  might  be  paffed  for  puniihmg  them  in  cafe  they 
fhould  be  nude. 

The  eif.  ntial  difference  between  the  Brit'fh  government, 
and  the  American  conftitutions,  will  place  this  fubjeEl  in 
the  cleared  light. 

In  the  Britifh  government,  the  danger  of  encroachments 
on  the  rights  of  the  people,  is  underftood  to  be  confined  to 
the  executive  magiftrate.  The  reprefentatives  of  the  people 
in  the  legislature,  are  not  only  exempt  themfelves,  from  dif- 
truft,  but  aie  confidered  as  Efficient  guardians  of  the  rights 
of  their  conftituents  againft  the  danger  from  the  executive. 
Hence  it  is  a  principle,  that  the  parliament  is  unlimited  in  its 
po  wer;  or  m  their  own  language,  is  omnipotent.  Hence  too,  all  - 
the  ramparts  ior  protecting  the  rights  of  the  people,  fuch  as 
their  magna  charta,  their  bill  of  rights,  &c,  are  not  reared 
againft  the  parliament,  but  againft  the  royal  prerogative* 
They  are  merely  iegillative  precautions,  againft  executive 
tifurpations.  Under  fuch  a  government  as  this,  an  exemp¬ 
tion  of  the  prefs  from  previous  reftraint  by  licenfers  ap¬ 
pointed  by  the  king,  is  all  the  freedom  that  can  be  fecured 
to  it. 

In  the  United  States,  the  cafe  is  altogether  different.  The 
people,  not  the  government,  poffefs  the  abfolute  fovereignty. 

I  he  legiftature,  no  lefs  than  the  executive,  is  under  limi¬ 
tations  of  power.  Encroachments  are  regarded  as  poffi- 
bie  irom  the  one,  as  well  as  from  the  other.  Hence  in  the 
U  ■  d  States,  the  great  and  effential  rights  of  the  people 
are  iecured  againft  iegiftative,  as  well  as  againft  execu- 


C  37  ) 

tEve  ambition.  They  ate  fecureil,  not  by  laws  para- 
mount  to  prerogative*,  but  by  conftitutions  paramount  to 
laws,  i  his  fecurity  of  the  freedom  of  the  prefs,  requires 
that  it  fhould  be  exempt  not  only  from  previous  reftraint 
by  the  executive,  as  in  Great  Britain  ;  but  from  legiflative 
reftraint  alfo  ;  and  this  exemption,  to  be  effectual,  muff  be 
an  exemption,  not  only  from  the  previous  infpeclion  of  li- 
cenfers,  but  from  the  mbfequent  penalty  of  laws. 

The  ftate  of  the  prefs,  therefore,  under  the  common  law', 
cannot  in  this  point  of  view,  be  the  ftandard  of  its  freedom 
in  the  United  States. 

But  there  is  another  view,  under  which  it  may  be  necef- 
fary  to  confider  this  fubje£t.  It  may  be  alleged,  that  al¬ 
though  the  fecurity  for  the  freedom  of  the  prefs,  be  differ¬ 
ent  in  Great  Britain  and  in  this  country  ;  being  a  legal  fe¬ 
curity  only  in  the  former,  and  a  conflitutional  fecurity  in 
the  latter;  and  although  there  may  be  a  further  difference, 
in  an  extenfion  of  the  freedom  of  the  prefs,  here,  beyond 
an  exemption  from  previous  rellraint,  to  an  exemption  from 
fubfequent  penalties  alfo  ;  yet  that  the  adtual  legal  freedom 
of  the  prefs,  under  the  common  law,  muft  uetermine  the 
degree  of  freedom,  which  is  meant  by  the  terms  and  which 
is  conftitutionally  fecured  againft  both  previous  and  fubfe¬ 
quent  reftraints. 

The  committee  are  not  aware  of  the  difficulty  of  all  gene¬ 
ral  queftions  which  may  turn  on  the  proper  boundary  be¬ 
tween  the  liberty  and  the  licentioufnefs  of  the  prefs.  They 
will  leave  it  thereiore  for  confideration  only,  how  far  the 
difference  between  the  nature  of  the  Britifh  government,  and 
the  nature  of  the  American  governments,  and  the  practice 
under  the  latter  may  fhew  the  degree  of  rigour  in  the  for¬ 
mer,  to  be  inapplicable  to,  and  not  obligatory  in,  the  letter. 

The  nature  of  governments  elective,  limited  and  refponfi- 
ble,  in  all  their  branches,  may  well  be  iuppofed  to  require 
a  greater  freedom  of  animadverfion,  than  might  be  tolerated 
by  the  genius  of  fuch  a  government  as  that  of  Great  Britain. 
In  the  latter,  it  is  a  maxim,  that  the  king,  an  hereditary,  not 
a  refponfible  magiilrate,  can  do  no  wrong;  and  that  the  iegif- 
lature,  which  in  two  thirds  of  its  compofition,  is  alfo  heredi¬ 
tary,  not  refponfible,  can  do  what  it  pleafes.  In  the  United 
States,  the  executive  magiftrates  are  not  held  to  be  infalli¬ 
ble,  nor  the  legidatures  to  be  omnipotent ;  and  both  being 
elective,  are  both  refponfible.  Is  it  not  natural  and  neceffary, 
under  fuch  different  circumftances,  that  a  different  degree 
of  freedom  in  the  uie  of  the  prefs,  fhould  be  contemplated  ? 

Is  not  fuch  an  inference  favoured  by  what  is  obfervable 


(  3S  ) 


in  Great  Britain  itfelf  ?  Notwithfianding  the  general  doc¬ 
trine  of  the  common  law,  on  the  fubjecl  of  the  profs,  and 
the  occafional  punifhment  of  thofe,  who  ufe  it  with  a  free¬ 
dom  ofFenfive  to  the  government  j  it  is  well  known,  that 
with  refpedl  to  the  refponfible  members  of  the  government, 
where  the  reafons  operating  here,  become  applicable  there  ; 
the  freedom  exercifed  by  the  prefs  and  piotedled  by  the 
public  opinion,  far  exceeds  the  limits  preh  ribed  by  the  or¬ 
dinary  rules  of  law.  The  miniftry,  who  are  refponlible  to 
impeachment,  are  at  all  times,  animadverted  on.  Ly  the  prefs, 
with  peculiar  freedom  •,  and  during  the  eledlions  lor  the 
Houfe  of  Commons,  the  other  relponfible  p:  rt  of  the  govern¬ 
ment,  the  prefs  is  employed  with  as  little  rcdorvc  towards  the 
candidates. 

The  practice  in  America  mud  be  entitled  to  much  more 
refpecl.  In  every  (late,  probably,  in  the  union,  the  prefs 
has  exerted  a  freedom  in  canvaffing  the  merits  and  mea lures 
of  public  men,  of  every  defcription,  which  has  not  been  con¬ 
fined  to  the  Uriel  limits  of  the  common  law. — On  this  foot¬ 
ing,  the  freedom  of  the  prefs  has  Hood  ;  on  this  foot  eg  it 
yet  (lands.  And  it  will  not  be  a  breach  either  of  truth  or 
of  candour,  to  fay,  that  no  prelfes  or  perfons  are  in  the  habit 
of  more  unreftrained  animadverfions  on  the  proceedings  and 
functionaries  of  the  Hate  governments',  than  the  perfons  and 
prefics  mod  zealous  in  vindicating  the  adl  of  Congrefs  for 
punilhing  limilar  animadverfions  on  the  government  of  the 
United  States. 

The  lull  remark  will  not  be  underflood,  as  claiming  for 
the  Hate  governments  an  immunity  greater  than  they  have 
heretofore  enjoyed.  Some  degree  of  abufe  is  infeparable  from 
the  proper  ufe  of  every  thing  •,  and  in  no  inftance  is  this  more 
true,  than  in  that  of  the  prefs.  It  has  accordingly  been  de¬ 
cided  by  the  practice  cf  the  Hates,  that  it  is  better  to  leave 


a  few  of  its  noxious  branches,  to  their  luxuriant  growth,  than 
by  pruning  them  away  to  injure  the  vigour  of  thofe  yielding 
proper  fruits.  And  can  the  wifdom  of  this  policy  be  doubted 
by  any  who  refleCl,  that  to  the  prefs  alone,  chequered  as  it 
is  with  abuie,  the  world  is  indebted  for  all  the  triumphs 
which  have  been  gained  by  reafon  and  humanity,  over  error 
and  epprdnon  ;  who  reflect  that  to  the  fame  beneficent 
fource  the  United  States  owe  much  of  the  lights  which  con¬ 
ducted  them  to  the  rank  of  a  free  and  independent  nation  > 
and  widen  have  improved  their  political  fyftem,  into  a  Hi  ape 
k>  aufpicious  to  their  happinefs.  Had  “■  Sedition  a£ts/* 
forbidding  every  publication  that  might  bring  the  confiituted 
agents  into  contempt  or  diirepute,  or  that  might  excite  the 


hatred  of  the  people  againft  the  authors  of  unjufr.  or  perni¬ 
cious  meafures,  been  uniformly  enforced  againft  the  prefs  ; 
might  not  the  United  States  have  been  languifhiim  at  this 
day,  under  the  infirmities  of  a  fickly  confederation  ?  Might 
they  not  poflibly  be  miferable  colonies,  groaning  under  a  fo¬ 
reign  yoke  ? 

To  thefe  obfervations  one  fadl  will  be  added,  which  de- 
mon Urates  that  the  common  law  cannot  be  admitted  as  the 
univerfal  expositor  of  American  terms,  which  may  be  the 
fame  with  thefe  contained  in  that  law.  The  freedom  of 
confidence  and  of  religion,  are  found  in  the  fame  inftru- 
ments,  which  albert  the  freedom  of  the  prefs.  It  will  never 
be  admitted,  that  the  meaning  of  the  former,  in  the  common 
law  of  England,  is  to  limit  their  meaning  in  the  United 
States. 


Whatever  weight  may  be  allowed  to  thefe  conliderations, 
the  committee,  do  not,  however,  by  any  means,  intend  to 
roll  the  queftion  on  them.  They  contend  that  the  article  of 
amendment,  inftead  of  fuppofing  in  Congrefs,  a  power  that 
mi>  he  be  exercifed  over  the  prefs,  provided  its  freedom  be 
not  abridged,  was  meant  as  a  pofitive  denial  to  Congrefs,  of 
any  power  whatever  on  the  fubjedl. 

To  demonftrate  that  this  was  the  true  object  of  the  article, 
it  wiii  be  fufficient  to  recal  the  circumllances  which  led  to 
it.;  and  to  refer  to  the  explanation  accompanying  the  article. 

When  the  Conftitution  was  under  the  difeuilions  which 
preceded  its  ratification,  it  is  well  known,  that  great  appre 
lieu  lions  were  exp  relied  by  many,  left  the  omiffion  of  tome 
pofitive  exception  from  the  powers  delegated,  of  certain 
rights,  and  of  the  freedom  of  the  prefs  particularly,  might 
expofe  them  to  the  danger  of  being  drawn  by  conftrutlion 
within  feme  of  the  powers  veiled  in  Congrels  ;  more  efpe- 
cially  of  the  power  to  make  all  laws  neceftary  and  proper,  for 
carrying  their  other  powers  into  execution.  In  reply  to  this 
objection,  it  was  invariably  urged  to  be  a  fundamental  and 
charadleriftic  principle  of  the  Conftitution,  that  all  powers 
not  given  by  it,  were  referved  ;  that  no  powers  were  given 
beyond  thole  enumerated  in  the  Conftitution,  and  fuch  as 
were  fairly  incident  to  them  ;  that  the  power  over  the  rights 
in  queftion,  and  particularly  over  the  prefs,  was  neither 
among  the  enumerated  powers,  nor  incident  to  any  of  them; 
and  confequently  that  an  exercife  of  any  fuch  power,  would 
be  a  manifeft  ufurpation.  It  is  painful  to  remark,  how  much 
the  arguments  now  employed  in  behalf  of  the  fedition  atl, 
are  at  variance  with  the  reafoning  which  then  juftmed  the 
Conftitution,  and  invited  its  ratification. 


(  40  ) 


From  this  pofture  of  the  fubje&,  refulted  the  interefting 

queftion  in  fo  many  of  the  conventions,  whether  the  doubts 
and  dangers  aferibed  to  the  Conftitution.  (hould  be  removed 
by  any  amendments  previous  to  the  ratification,  or  be  poll- 
poned,  in  confidence  that  as  far  as  they  might  be  proper, 
they  would  be  introduced  in  the  form  provided  by  the  Con¬ 
ftitution.  The  latter  courfe  was  adopted  \  and  in  molt  of 
the  dates  the  ratifications  were  followed  by  propofitious  and 
inttru&ions  for  rendering  the  Conftitution  more  explicit,  and 
more  fafe  to  the  rights,  not  meant  to  be  delegated  by  it. 
Among  thofe  rights,  the  freedom  of  the  prefs,  in  molt  in- 
flances,  is  particularly  and  emphatically  mentioned.  The 
firm  and  very  pointed  manner,  in  which  it  is  after  ted  in  the 
proceedings  of  theconventionof  thi&ftate  will  be  hereafter  feen. 

In  purfuance  of  the  wifhes  thus  exprefled,  the  firft  Con¬ 
grefs  that  afTembl-ed  under  the  Conftitution,  propofed  cer¬ 
tain  amendments  which  have  fince,  by  the  neceflary  ratifi¬ 
cations  been  made  a  part  of  it ;  among  which  amendments 
is  the  article  containing,  among  other  prohibitions  on  the 
Congrefs,  an  exprefs  declaration  that  they  (hould  make  no 
law  abridging  the  freedom  of  the  prefs. 

Without  tracing  farther  the  evidence  on  this  fubje£l,  it 
would  feem  fcarcel)  poffible  to  doubt,  that  no  power  what¬ 
ever  over  the  prefs,  was  fuppofed  to  be  delegated  by  the 
Conftitution,  as  it  originally  flood  ;  and  that  the  amendment 
was  intended  as  a  pofitive  and  aofolute  refervation  of  it. 

But  the  evidence  is  ftiil  ftrongcr.  The  propofition  of 
amendments  made  by  Congrefs,  is  introduced  in  the  following 
terms  :  S’  he  Convention  of  a  number  of  the  (bates  having  at 
the  time  of  their  adopting  the  Conjlitution ,  ex  prefed  a  defue ,  in 
order  to  prevent  mfconf  ructions  or  abufe  of  its  powers ,  that  fur¬ 
ther  declaratory  and  refriEiive  claufes  fhoubd  be  added ;  and  as 
extending  the  ground  of  public  confidence  in  the  government ,  vuili 
bef  enfure  the  benefeent  ends  of  its  inf  Huttons ” 

Here  is  the  moll  fatisfaclory  and  authentic  proof,  that 
the  feveral  amendments  propofed,  were  to  be  confidered  as 
cither  declaratory  or  reftriciive  *,  and  whether  the  one  or 
the  other,  as  correfponding  with  the  defire  exprefled  by  a 
number  of  the  ftates,  and  as  extending  the  ground  of  public 
confidence  in  the  government. 

Under  any  other  conflruclion  of  the  amendment  relating 
to  the  prefs,  than  that  it  declared  the  prels  to  be  wholly  ex¬ 
empt  from  the  power  of  Congrefs,  the  amendment  could 
neither  be  faid  to  correfpond  with  the  defire  exprefled  by  a 
number  or  the  ftates,  nor  be  calculated  to  extend  the  ground 
of  pumic  confluence  in  the  government. 


{  4*  ) 

Nay  more  *,  the  conftrudftion  employed  to  juftify  the  c<  fe- 
dition  a£t,”  would  exhibit  a  phenomenon,  without  a  parallel 
in  the  political  world.  It  would  exhibit  a  number  of  ref- 
pecdable  ftates,  as  denying  firft  that  any  power  over  the 
prefs  was  delegated  by  the  Conftitution  ;  as  propofmg  next, 
that  an  amendment  to  it,  fhould  explicitly  declare  that  no 
fuch  power  was  delegated  j  and  finally,  as  concurring  in  an 
amendment  actually  recognizing  or  delegating  fuch  a  power. 

Is  then  the  federal  government,  it  will  be  afked,  deftitute 
of  every  authority  for  reftraining  the  licentioufnefs  of  the 
prefs,  and  for  (hielding  itfelf  againlt  the  libellous  attacks 
which  may  be  made  on  thofe  who  adminifter  it  ? 

The  Conftitution  alone  can  anfwer  this  quefiion.  If  no 
fuch  power  be  exprefsly  delegated,  and  it  be  not  both  necef- 
fary  and  proper  to  carry  into  execution  an  exprefs  power  ; 
above  all,  if  it  be  exprefsly  forbidden  by  a  declaratory 
amendment  to  the  conftitution,  the  anfwer  rnuft  be,  that  the 
federal  government  is  deftitute  of  all  fuch  authority. 

And  might  it  not  be  afked  in  turn,  whether  it  is  not  more 
probable,  under  all  the  circumftances  which  have  been  re¬ 
viewed,  that  the  authority  fhould  be  withheld  by  the  Confti¬ 
tution,  than  that  it  fhould  be  left  to  a  vague  and  violent  con- 
ftrutlion:  whilft  fo  much  pains  were  beftowed  in  enumerating 
other  powers,  and  fo  many  lefs  important  powers  are  in¬ 
cluded  in  the  enumeration. 

Might  it  not  be  likewife  afked,  whether  the  anxious  cir- 
cumfpedftion  which  dictated  fo  many  peculiar  limitations  on 
the  general  authority,  would  be  unlikely  to  exempt  the  prefs 
altogether  from  that  authority  ?  The  peculiar  magnitude  of 
fome  of  the  powers  necefiarily  committed  to  the  federal  go¬ 
vernment  ;  the  peculiar  duration  required  for  the  functions 
of  fome  of  its  departments  j  the  peculiar  diftance  of  the  feat 
of  its  proceedings  from  the  great  body  of  its  conflituents  \ 
and  the  peculiar  difficulty  of  circulating  an  adequate  know¬ 
ledge  of  them  through  any  other  channel ;  will  not  theie 
confederations,  fome  or  other  of  which  produced  other 
exceptions  from  the  powers  of  ordinary  governments,  all 
together,  account  for  the  policy  of  binding  the  hand  of  the 
federal  government,  from  touching  the  channel  which  alone 
can  give  efficacy  to  its  refponfibility  to  its  conftituents  \  and 
of  leaving  thofe  who  adminifter  it,  to  a  remedy  for  injured 
reputations,  under  the  fame  laws,  and  in  the  fame  tribunals, 
which  protect  their  lives,  their  liberties,  and  their  properties  ? 

But  the  quefiion  does  not  turn  either  on  the  wild  cm  of 
the  Conftitution,  or  on  the  policy  which  gave  rile  fo  its  par¬ 
ticular  organization.  It  turns  on  the  afftual  meaning  of  the 


(  42  ) 


U 

U 


fnftrument ;  by  which  it  has  appeared,  that  a  power  over  the 
prefs  is  clearly  excluded,  from  the  number  of  powers  dele¬ 
gated  to  the  federal  government. 

III.  And  in  the  opinion  of  the  committee  well  may  it  be- 
fa  id,  as  the  refolution  concludes  with  faying,  that  the  un- 
conftitutional  power  exercifed  over  the  prefs  by  the  (L  fedition 
act,”  ought  t£  more  than  any  other,  to  produce  univerfal 
u  alarm ;  becaufe  it  is  levelled  againft  that  right  of  freely' 
C4  examining  public  characters  and  meafures,  and  of  free 
communication  among  the  people  thereon,  which  has  ever 
been  juftly  deemed  the  only  effectual  guardian  of  every 
other  right*” 

Without  fcrutinifing  minutely  into  all  the  provifions  of 
the  ((  fedition  adt,”  it  will  be  fufficient  to  cite  fo  much  of 
fedtion  2.  as  follows:  “  And  be  it  further  enadted,  that  if  anv 
<c  perfon  lhall  write,  print,  utter  or  publilh,  or  {hall  caufe  or 
procure  to  be  written,  printed,  uttered  or  pubiiihed,  or  {hall 
G£  knowingly  and  willingly  aftift  or  aid  in  writing,  printing, 
uttering  or  publishing  any  falfe,  fcandalous,  and  malicious 
writing  or  writings  againft  the  government  of  the  United 
States.,  or  either  houfe  of  the  Congrefs  of  the  United 
States,  or  the  Preftdent  of  the  United  States,  'with  an  in- 
<4  tent  to  defame  the  faid  government ,  or  either  houfe  of  the  faid 
Gt  Congrefs ,  or  the  Preftdent ,  or  to  bring  them ,  or  either  of  them , 
i(  into  contempt  or  dif reput e  ;  or  to  excite  againjl  them,  or  either , 
uC  or  any  of  them ,  the  hatred  of  the  good  people  of  the  United  States , 
Cc  tUc.  Ihen  fuch  perfon  being  thereof  convicted  before  any  court 
of  the  United  States ,  having  jurif diction  thereof ,  fall  be  pu - 
nifed  by  a  fine  not  exceeding  two  thoufand  dollars ,  and  by  im - 
prifonment  not  exceeding  two  years.” 

On  this  part  of  the  adt  the  following  obfervations  prefent 
thcmfelves. 

1*  The  Conftitution  fuppofes  that  the  Prefident,  the 
Congrels,  and  each  of  its  houfes,  may  not  difeharge  their 
trufts,  either  from  deled!  of  judgment,  or  other  caufes. 
He  nee,  they  are  all  made  refponfible  to  their  conftituents,  at 
the  returning  periods  of  eleUion  ;  and  the  Prefident,  who  i3 
fingly  entrufted  with  very  great  powers,  is,  as  a  further 
guard,  fubjedted  to  an  intermediate  impeachment. 

2.  Should  it  happen,  as  the  Conftitution  fuppofes  it  may 
happen,  that  either  of  thefe  branches  of  the  government, 
may  not  have  duly  difeharged  its  truft ;  it  is  natural  and 
proper,  that  according  to  the  caufe  and  decree  of  their  faults, 
mey  ihould  be  brought  into  contempt  or  difrepute,  and  incur 
She  hatred  of  the  people. 

3,  Whether  it  has,  ia  any  cafe,  happened  that  the  pro 


1. 


i  <• 
6C 


■(  4.3  ) 


ceed-mgs  of  either,  or  all  of  thofe  branches,  evinced  fuch  a 
violation  of  duty  as  to  juftify  a  contempt,  a  difrepute  or  ha¬ 
tred  among  the  people,  can  only  be  determined  by  a  free 
examination  thereof,  and  a  free  communication  among  the 
people  thereon. 

4.  Whenever  it  may  have  addually  happened,  that  pro¬ 
ceedings  of  this  fort  are  chargeable  on  ail  or  either  of  the 
branches  of  the  government,  it  is  the  duty  as  well  as  right  of 
intelligent  and  faithful  citizens,  to  difeufs  and  promulge  them 
freely,  as  well  to  control  them  by  the  cenf'orfhip  of  the  public 
■opinion,  as  to  promote  a  remedy  according  to  the  rules  of 
-the  Conftitutipn.  And  it  cannot  be  avoided,  that  thofe  who 
are  to  apply  the  remedy  mud  feel,  in  fome  degree,  a  con¬ 
tempt  or  hatred  againft  the  tranfgreffing  party. 

5.  As  the  add  was  palled  on  July  14,  1798,  and  is  to  be  in 
force  until  March  3,  1801,  it  was  of  courfe,  that  during  its 
continuance,  two  elections  of  the  entire  Houfe  of  Repre¬ 
sentatives,  an  election  of  apart  of  the  Senate,  and  an  election 
of  a  Prefident,  were  to  take  place. 

6.  That  confequently,  during  all  thefe  elections,  intended 
by  the  Conlfitution  to  preferve  the  purity,  or  to  purge  the 
faults  of  the  adminidration,  the  great  remedial  rights  of  the 
people  were  to  be  exercifed,  and  the  refponnbility  of  their 
public  agents  to  be  fkreened,  under  the  penalties  of  this  add. 

May  it  not  be  alked  of  every  intelligent  friend  to  the  liber¬ 
ties  of  his  country  whether,  the  power  exerciled  in  fuch  an 
add  as  this,  ought  not  to  produce  great  and  univerfal  alarm  ? 
Whether  a  rigid  execution  of  fuch  an  add,  in  time  pad, 
would  not  have  repreffed  that  information  and  communication 
among  the  people,  which  is  indifpenlible  to  the  jud  exercile 
of  their  eleddoral  rights  ?  And  whether  fuch  an  add,  if  made 
perpetual,  and  enforced  with  rigour,  would  not,  in  time  to 
come,  either  dedroy  our  free  fyftem  of  government,  or  pre¬ 
pare  a  convulfion  that  might  prove  equally  fatal  to  it  ? 

in  anfwer  to  fuch  quehions,  it  has  been  pleaded  that  the 
■writings  and  publications  forbidden  by  the  acd,  are  thofe  only 
which  are  r.dfe  and  malicious,  and  intended  to  defame  •,  and 
merit  is  claimed  for  the  privilege  allowed  to  authors  to  juf- 
tify,  by  proving  the  truth  of  their  publications,  and  for  the 
limitations  to  which  the  fentence  of  line  and  imprilonment  is 


fubjedded. 

To  thofe  who  concurred  in  the  add,  under  the  extraordi¬ 
nary  belief,  that  the  option  lay  between  the  palling  of  fuch 
an  add,  and  leaving  in  force  the  common  law  of  libels,  wnich 
punilhes  truth  equally  with  falfehood,  and  fubmits  tiie  line 
and  imprifoumeiu  to  the  indefinice  difcretion  oi  tne  court, 


(  44'  ) 

the  merit  of  good  intentions  ought  furely  not  to  be  refufed. 
A  like  merit  may  perhaps  be  due  for  the  difcontiriuance  of 
the  corporal punijh ment,  which  the  common  law  alfo  leaves  to 
the  diferetion  of  the  court. — This  merit  of  intention  y  however, 
would  have  been  greater,  if  the  feveral  mitigations  had  not 
been  limited  to  fo  fhort  a  period;  and  the  apparent  inconfif- 
tency  would  have  been  avoided,  between  juftifying  the  adi  at 
one  time,  by  contrafting  it  with  the  rigours  of  the  common 
law,  otlierwife  in  force  ;  and  at  another  time  by  appealing  to 
the  nature  of  the  crifis,  as  requiring  the  temporary  rigour 
exerted  by  the  adh 

But  whatever  may  have  been  the  meritorious  intentions  of 
all  or  any  who  contributed  to  the  fedition  adf,  a  very  few 
reflections  will  prove,  that  its  baneful  tendency  is  little  di- 
minilhed  by  the  privilege  of  giving  in  evidence  the  truth  of 
the  matter  contained  in  political  writings. 

In  the  firft  place,  where  fimple  and  naked  fadfs  alone  are 
in  queftion,  there  is  fufficient  difficulty  in  fome  cafes,  and 
fufficient  trouble  and  vexation  in  all,  of  meeting  a  profecutioa 
from  the  government,  with  the  full  and  formal  proof  necef- 
fary  in  a  court  of  law. 

But,  in  the  next  place,  i$  muff  be  obvious  to  the  plaineift 
minds,  that  opinions  and  inferences,  and  conjedlural  obfer- 
vations,  are  not  only  in  many  cafes  infeparabie  from  the  facts, 
but  may  often  be  more  the  objects  of  the  profecution  than 
the  fadts  themfelves  ;  or  may  even  be  altogether  abstracted 
from  particular  fadts  ;  and  that  opinions  and  inferences,  and 
conjedlural  obfervations,  cannot  be  fubjedts  of  that  kind  of 
proof  which  appertains  to  facts,  before  a  court  of  law. 

Again,  it  is  no  lefs  obvious,  that  the  intent  to  defame  or 
bring  into  contempt  or  difrepute,  or  hatred,  which  is  made 
a  condition  of  the  Offence  created  by  the  adt ;  cannot  pre¬ 
vent  its  pernicious  influence  on  the  freedom  of  the  prefs. 
For  omitting  the  enquiry,  how  far  the  malice  of  the  intent 
is  an  inference  of  the  law  from  the  mere  publication,  it  is 
manifeftly  impoffible  to  puniffi  the  intent  to  bring  thofe  who 
adminifter  the  government  into  difrepute  or  contempt,  with¬ 
out  llriking  at  the  right  of  freely  difeuffing  public  charac¬ 
ters  and  meafures  :  becaufe  thofe  who  engage  in  fuch  dif- 
cu (lions,  muff  expedt  and  intejid  to  excite  thefe  unfavourable 
fentiments,  fo  far  as  they  may  be  thought  to  be  deferved. 
lo  prohibit  therefore  the  intent  to  excite  thole  unfavourable 
fentiments  againft  thofe  who  adminifter  the  government,  is 
equivalent  to  a  prohibition  of  the  adtual  excitement  of  them; 
and  to  prohibit  the  actual  excitement  of  them,  is  equivalent 
to  a  prohibition  of  diicuffions  having  that  tendency 


(  45  ) 


ahd  effeCt  *,  which,  again,  is  equivalent  to  a  protection  of 
thofe  who  adminifter  the  government,  if  they  fhould  at  any 
time  deferve  the  contempt  or  hatred  of  the  people,  againft 
being  expofed  to  it,  by  free  animaaverfions  on  their  charac¬ 
ters  and  conduCt.  Nor  can  there  be  a  doubt,  if  thole  in  pub¬ 
lic  truft  be  fhielded  by  penal  laws  from  fuch  ftrictures  of  the 
prefs,  as  may  expofe  them  to  contempt  or  difrepute,  or  ha¬ 
tred,  where  they  may  deferve  it,  that  in  exact  proportion  as 
they  may  deferve  to  be  expofed,  will  be  the  certainty  and 
criminality  of  the  intent  to  expofe  them,  and  the  vigilance 
of  profecuting  and  punifhing  it  ;  nor  a  doubt,  that  a  govern¬ 
ment  thus  intrenched  in  penal  ftatutes,  againft  the  juft  and 
natural  effeCts  of  a  culpable  adminiftration,  will  eafily  evade 
the  refponiibility,  which  is  effential  to  a  faithful  difcharge  of 
its  dutv. 

j 

Let  it  be  recollected,  laftly,  that  the  right  of  electing  the 
members  of  the  government,  conftkutes  more  particularly 
the  effence  of  a  free  and  refponfible  government.  The  value 
and  efficacy  of  this  right,  depends  on  the  knowledge  of  the 
comparative  merits  and  demerits  of  the  candidates  for  public 
truft  \  and  on  the  equal  freedom,  confequently,  of  examin¬ 
ing  and  difcuffing  thefe  merits  and  demerits  of  the  candidates 
respectively  It  has  been  feen  that  a  number  of  important 
elections  will  take  place  while  the  act  is  in  force  \  although  it 
fhould  not  be  continued  beyond  the  term  to  which  it  is  limited. 
Should  there  happen,  then  as  is  extremely  probable  in  rela¬ 
tion  to  fome  or  other  of  the  branches  of  the  government,  to 
be  competitions  between  thofe  who  are,  and  thofe  who  are 
not,  members  of  the  government,  what  will  be  the  fituations 
of  the  competitors  ?  Not  equal  :  becaufe  the  characters  of 
the  former  will  be  covered  by  the  “  fedition  aCl”  from  ani- 
madverfions  expofing  them  to  difrepute  among  the  people  ; 
whilft  the  latter  may  be  expofed  to  the  contempt  and  hatred 
of  the  people,  without  a  violation  of  the  aCL  What  will  be 
the  iituation  of  the  people  ?  Not  free  :  becaufe  they  will  be 
compelled  to  make  their  election  between  competitors,  whofe 
pretenfions  they  are  not  permitted  by  the  act,  equally  to  ex¬ 
amine,  to  difeufs,  and  to  afeertain.  And  from  both  thefe 
fituations,  will  not  thofe  in  powder  derive  an  undue  advantage 
for  continuing  themfclves  in  it ;  which  by  impairing  the 
right  of  election,  endangers  the  bleffings  of  the  government 
founded  on  it. 

It  is  with  juftice,  therefore,  that  the  General  Affembly 
hath  affirmed  in  the  refolution,  as  well  that  the  right  of  freely 
examining  public  characters  and  meafures,  and  of  free  com¬ 
munication  thereon,  i-s  the  only  effectual  guardian  of  every 


(  4*  ) 


other  right ;  as  that  this  particular  right  is  levelled  at,  by 
the  power  exercifed  in  the  “  fedition  aft.” 

The  refolution  next  in  order  is  as  follows  : 


'That  this  Jlate  having  by  its  Convention ,  which  ratified  the 
\ 'Federal  Co nfi 'it ut ion,  exprefsly  declared ,  that  among  other  ejjential 
rights  3  c'*  the  liberty  of  confcience  and  of  the  prefs  cannot  be  can - 
celled ,  abridged ,  refrained  or  modified  by  any  authority  of  the 
United  States  f  and  from  its  extreme  anxiety  to  guard  thefe 
rights  from  every  pojfible  attach  of  fophifiry  and  ambition ,  having 
with  other  f  ates  recommended  an  amendment  for  that  purpefe, 
which  amendment  was ,  in  due  time ,  annexed  to  the  confiitution  j 
it  would  mark  a  reproachful  inconfiflency ,  and  criminal  degeneracy , 
if  an  indifference  were  now  J}jewn>  to  the  mof  palpable  violation 
of  one  of  the  rights ,  thus  declared  and  fee u red  ;  and  to  the  efab~ 
hjhment  of  a  precedent ,  which  may  be  fatal  to  the  other  % 

To  place  this  refolution  in  its  juft  light,  it  will  be  neccfTary 
to  recur  to  the  act  of  ratification  by  Virginia,  which  (lands 
in  the  enfuing  form  »• 


We ,  the  Delegates  of  the  people  cf  Virginia ,  duly  el e Fled  in 
pur  fiance  of  a  recommendation  from  the  General  AJfembly ,  and 
now  met  in  Convention ,  having  fully  and  freely  irivefigated  and 
difiijfed  the  proceedings  of  the  Federal  Convention ,  and  being  pre¬ 
pared  as  well  as  the  mof  mature  deliberation  hath  enabled  us,  to 
decide  thereon;  DO ,  in  the  name  and  in  behalf  of  the  people 
■of  Virginia ,  declare  and  made  known ,  that  the  powers  granted 
wider  the  confiiuiion ,  being  derived  from  the  people  cf  the  United 
States,  may  be  refumed  by  them ,  whsnfoever  the  fame  fall  be  per¬ 
verted  to  their  injury  or  opprejfion  „•  and  that  every  power  not 
granted  thereby ,  remains  with  them ,  and  at  their  will.  Fhat 
therefore ,  no  right  of  any  denomination  can  be  cancelled ,  abridged , 
refrained  or  modified ,  by  the  Gorgrefs ,  by  the  Senate  or  JUoufe 
of  Reprefentatives  aFling  in  any  capacity ,  /?y  the  Prcfident ,  cr  cwy 
department  or  officer  of  the  United  States ,  except  in  thofe  infances 
in  which  power  is  given  by  the  confitution  for  thofe  purpofes ; 
and>  that  among  other  ejjential  rights ,  the  liberty  of  confcience  and 
of  the  prefs ,  cannot  be  cancelled ,  abridged ,  ref  rained  or  modified 
by  any  authority  of  the  United  States. 

Here  is  an  exprefs  and  folernn  declaration  by  the  conven¬ 
tion  of  the  ftate,  that  they  ratified  the  conftitution  in  the 
fenfe,  that  no  right  of  any  denomination  can  be  cancelled, 
abridged,  reftrained  or  modified  by  the  government  of  the 
United  States  or  any  part  of  it;  except  in  thofe  inftanccs  in 
which  power  is  given  by  the  conftitution  ;  and  in  the  fenfe  par¬ 
ticularly,  «  that  among  other  effential  rights,  the  liberty  of  con¬ 
fcience  and  freedom  o(  the  prefs  cannot  be  cancelled,  abridged, 
reftrained  or  modified,  by  any  authority  of  the  United  States/* 


(  47  ) 

Words  could  not  well  exprefs,  in  a  fuller  or  more  forcible 


manner,  the  underdanding  of  the  convention,  that  the  li¬ 
berty  of  confcience  and  the  freedom  of  the  prefs,  were 
squally  and  completely  exempted  from  all  authority  whatever 
of  the  United  States. 

Under  an  anxiety  to  guard  more  effectually  thefe  rights 
againtl  every  poffible  danger,  the  convention,  after  ratifying 
the  confutation,  proceeded  to  prefix  to  certain  amendments 
propofed  by  them,  a  declaration  of  rights,  in  which  are  two 
articles  providing,  the  one  for  the  liberty  of  conlcience,  the 
other  for  the  freedom  of  fpeech  and  of  the  prefs. 

Similar  recommendations  having  proceeded  from  a  num¬ 
ber  of  other  dates,  and  Congrefs,  as  has  been  feen,  having 
in  confequence  thereof,  and  with  a  view  to  extend  the 
ground  of  public  confidence,  propofed  among  other  decla¬ 
ratory  and  redriUive  claufes,  a  claufe  exprefsly  fecuring  the 
liberty  of  confcience  and  of  the  prefs  ;  and  Virginia,  having 
concurred  in  the  ratifications  which  made  them  a  part  of  the 
conditution,  it  will  remain  with  a  candid  public  to  decide, 
whether  it  would  not  mark  an  inconfidency  and  degeneracy, 
if  an  indifference  were  now  fliewn  to  a  palpable  violation  of 
one  of  thofe  rights,  the  freedom  of  the  prefs ;  and  to  a  pre¬ 
cedent  therein,  which  may  be  fatal  to  the  other,  the  free 
exercife  of  religion. 

That  the  precedent  edabliffied  by  the  violation  of  the 
former  of  thefe  rights,  may,  as  is  affirmed  by  the  refolutior., 
be  fatal  to  the  latter,  appears  to  be  demondrable,  by  a  com- 
parifon  of  the  grounds  on  which  they  refpeclively  red  ;  and 
from  the  fcope  of  reafoning,  by  which  the  power  over  the- 
former  has  been  vindicated. 

Firfc .  Both  of  thefe  rights,  the  liberty  of  confclenccand 
of  the  prefs,  red  equally  on  the  original  ground  of  not  being 
delegated  by  the  conditution,  and  ccnfequently  withheld 
from  the  government.  Any  condruclion  therefore,  that 
would  attack  the  original  fecurity  for  the  one,  mud  have 
the  like  effect  on  the  other. 

Secondly ,  They  are  both  equally  fecured  by  the  fupplement 
to  the  Conditution;  being  both  included  in  the  fame  amend¬ 
ment,  made  at  the  fame  time,  and  by  the  fame  authority. 
Any  condrublion  or  argument  then  which  would  turn  the 
amendment  into  a  grant  or  acknowledgment  of  power  with 
refpeCt  to  the  prefs,  might  be  equally  applied  to  the  freedom 
of  religion. 

i Thirdly .  If  it  be  admitted  that  the  extent  of  the  freedom 


t,  is  to  be  mea fured  by 
lame  authority  may  be 


(  43  ) 

reforted  to,  for  the  dandard  which  is  to  fix  the  extent  of  the 
“  free  exercife  of  religion,”  It  cannot  be  necefiary  to  fay 
what  this  (landard  would  be  3  whether  the  common  law 
be  taken  folely  as  the  unwritten,  or  as  varied  by  the  written, 
law  of  England, 

Fourthly.  If  the  words  and  phrafes  in  the  amendment,  are 
to  be  confidered  as  chofen  with  a  lludied  difcrimination, 
which  yields  an  argument  for  a  power  over  the  prefs,  under 
the  limitation  that  its  freedom  be  not  abridged  3  the  fame  ar¬ 
gument  refults  from  the  fame  confideration,  for  a  power  oyer 
the  exercife  of  religion,  under  the  limitation  that  its  freedom 
be  not  prohibited. 

For  if  Congrefs  may  regulate  the  freedom  of  the  prefs, 
provided  they  do  not  abridge  it 3  becaufe  it  is  faid  only, 
4<  they  (hall  not  abridge  it*,”  and  is  not  faid,  4<  they  (hall  make 
no  law  refpedling  it :”  the  analogy  of  reafoning  is  conclufive, 
that  Congrefs  may  regulate  and  even  abridge  the  free  exercife 
of  religion  3”  provided  they  do  not  prohibit  it 3  becaufe  it  is 
faid  only  4<  they  (hall  not  prohibit  it  3”  and  is  not  faid  “  they 
{hall  make  no  law  refpeBing  or  no  law  abridging  it.” 

The  General  AlTembly  were  governed  by  the  cleared  rea- 
fon,  then,  in  confidering  the  4<  Sedition  adl,”  which  legislates 
on  the  freedom  of  the  prefs,  as  edablifhing  a  precedent  that 
may  be  fatal  to  the  liberty  of  confidence  and  it  will  be  the 
duty  of  all,  in  proportion  as  they  value  the  fecurity  of  the 
latter,  to  take  the  alarm  at  every  encroachment  on  the  former. 

The  two  concluding  refolutions  only  remain  to  be  exa¬ 
mined,  They  are  in  the  words  following  : 

“•  That  the  good  people  of  this  commonwealth,  having 
«£  ever  felt,  and  continuing  to  feel  the  mod  fincere  affection 
<4  for  their  brethren  of  the  other  dates  3  the  trued  anxiety 
<£  for  edablifihing  and  perpetuating  the  union  of  all  3  and  the 
£4  mod  fcrupulous  fidelity  to  that  Conditurion,  which  is  the 
“  pledge  of  mutual  frieuddfip,  and  the  indrument  of  mutual 
«4  happinefs  3  the  General  Aflembly  doth  folemnly  appeal  to 
44  the  like  difpofitions  in  the  other  dates,  in  confidence  that 
<£  they  will  concur  with  this  commonwealth  in  declaring,  as 
££  it  does  hereby  declare,  that  the  acts  aforefaid,  are  uncon- 
4£  ditutional  3  and,  that  the  necefiary  and  proper  meafures 
44  will  be  taken  by  each,  for  co-operating  with  this  date,  in 
“  maintaining  unimpaired,  the  authorities,  rights,  and  liber- 
w  ties,  referved  to  the  dates  refpedlively,  or  to  the  People. ” 

<4  '1  hat  the  Governor  be  defired,  to  tranfmit  a  copy  of  the 
44  foregoing  refolutions  to  the  executive  authority  of  each  of 
uS  the  other  dates,  with  a  requed  that  the  fame  may  be  com- 
4<  municated  to  the  Legiflature  thereof;  and  that  a  copy  be 


(  49  ) 


€"  furnifhed  to  each  of  the  Senators  and  Representatives  re- 
<c  pre  fen  ting' this  hate  in  the  Congrefs  of  the  United  States/* 

The  fairnefs  and  regularity  of  the  courfe  of  proceedings 
here  purfued,  have  not  protected  it,  againft  objections  even 
too  refpeCtablc  to  be  difre^arded, 

A  O 

It  has  been  faid  that  it  belongs  to  the  judiciary  of  the 
United  States,  and  not  to  the  Hate  legiflatures,  to  declare  the 
meaning  of  the  Federal  Conilitution 

But  a  declaration  that  proceedings  of  the  Federal  Govern¬ 
ment  are  not  warranted  by  the  Conftitution,  is  a  novelty 
neither  among  the  citizens,  nor  among  the  legiflatures  of  the 
Rates;  nor  are  the  citizens  or  the  legislature  of  Virginia,  An¬ 
gular  in  the  example  of  it. 

Nor  can  the  declarations  of  either,  whether  affirming  or 
denying  the  conftitutionality  of  meafurcs  of  the  Federal 
Government,  or  whether  made  before  or  after  judicial  deci- 
fjo  ns  thereon,  be  deemed,  in  any  point  of  view,  an  aflumption 
of  the  office  of  the  judge.  The  declarations  in  fuch  cafes, 
are  expreffions  of  opinion,  unaccompanied  with  any  other 
effect,  than  what  they  may  produce  on  opinion,  by  exciting 
reflection.  The  expofitions  of  the  judiciary,  on  the  other 
hand,  are  carried  into  immediate  effect  by  force.  The  for¬ 
mer  may  lead  to  a  change  in  the  legiflative  expreffion  of  tire 
general  will ;  poffibly  to  a  change  in  the  opinion  of  the  judi¬ 
ciary  :  the  latter  enforces  the  general  will,  whilft  that  will 
and  that  opinion  continue  unchanged. 

And  if  there  be  no  impropriety  in  declaring  the  unconfti- 
tutionality  of  proceedings  in  the  Federal  Government,  where 
can  be  the  impropriety  of  communicating  the  declaration  to 
other  Rates,  and  inviting  their  concurrence  in  a  like  decla¬ 
ration  ?  What  is  allowable  for  one,  muft  be  allowable  for 
all ;  and  a  free  communication  among  the  Rates,  where  the 
conftitution  impofes  no  reftraint,  is  as  allowable  among  the 
Rate  governments,  as  among  other  public  bodies,  or  private 
citizens.  This  confideration  derives  a  weight,  that  cannot 
be  denied  to  it,  from  the  relation  of  the  Rate  legiflatures  to 
the  federal  legiflature,  as  the  immediate  conftituents  of  one 
of  its  branches. 


The  legiflatures  of  the  Rates  have  a  right  alfo,  to  originate 
amendments  to  the  conftitution,  by  a  concurrence  of  two 
thirds  of  the  whole  number,  in  applications  to  Congrefs  for 
thepurpofe.  When  new  Rates  are  to  be  formed  by  a  junction 
of  two  or  more  Rates,  or  parts  of  Rates,  the  legiflatures  of 
the  Rates  concerned,  are,  as  well  as  Congrefs,  to  concur  in 
the  meafure.  Ihe  Rates  have  a  right  alio,  to  enter  into 
agreements,  or  compacts,  with  the  content  cf  Cong i  c 

(Jr 


4 


(  s«  ) 

In  'ill  fiich  cafes,  a  communication  among  them,  refirftsr 
from  the  obj  61  which  is  common  to  them. 

It  is  ladly  to  be  feen,  whether  the  confidence  exprefled  by 
the  refolution,  that  the  necejftiry  and  proper  meafures  would  be 
taken  by  the  other  hates,  for  co-operating  with  Virginia,  in. 
maintaining  the  rights  referved  to  the  hates,  or  to  the  peo¬ 
ple,  be  in  any  degree  liable  to  the  objections  which  have  been* 
railed  again  it  it. 

If  it  be  liable  to  objection,  ifc  mud  be,  becaufe  either  the 
object  or  die  means  are  objectionable. 

b he  objeft  being  to  maintain  what  the  eonftitution  has 
ordained,  is  in  it  fell  a  laudable  object 

The  means  are  exprefled  in  the  terms,  u  the  neceflary 
and  proper  meafures. ^  A  proper  obj  eft  was  to  be  purfued, 
by  means  both  neceflary  and  proper. 

To  find*  an  objvCtiom  then,  it  mud  be  {hewn,  that  fome 
meaning  was  annexed  to  thTe  general  terms,  which  was  rot- 
proper  i  and  for  this  purpoflj,  either  that  the  means  ufed  by 
the  General  Aflembly  were  an  example  of  improper  means* 
ck  that  there  were  no  proper  means  to  which  the  terms  could 
refer. 

In  the  example  given  by  the  date,  of  declaring  the  alien 
and  fedition  acts  to  be  unconftitutional,  and  of  communi¬ 
cating  the  declaration  to  the  other  dates,  no  trace  of  improper 
means  has  appeared.  And  if  the  other  dales  had  concurred* 
in  making  a  like  declaration,  fupported  too  by  the  numerous, 
applications  Sowing  immediately  from  the  people,  it  can 
fcarcely  be  doubted,  that  thefe  fimple  means  would  have 
been  as  fufficient,  as  they  are  unexceptionable. 

It  is  no  lefs  certain,  that  other  means  might  have  been 
employed,  which  are  dricliy  within  the  limits  of  the  Condi- 
tution.  The  legiflatures  of  the  dates  might  have  made  a 
dir  eft  reprefentation  to  Congrefs,  with  a  view  to  obtain  a 
refeinding  of  the  twu  ofFenfive  afts  *,  or  they  might  have  re- 
prefented  to  their  refpeftive  fenators  in  Congrefs,  their  wifh, 
trli.it  two  thirds  thereof  would  propofe  an  explanatory  amend¬ 
ment  to  the  Conftitution  ;  or  two  thirds  of  themfeives,  if 
fitch  had  been  their  option,  might,  by  an  application  to. 
Congrefe,  have  obtained  a  convention  for  the  fame 
objefh 

Thefe  feveral  means,  though  not  equally  eligible  in  them¬ 
feives  nor,  probably,  to  the  dates,  were  all  Conftituticmally? 
open  for  confideration.  And  if  the  General  Aflembly,  after, 
declaring  tire  two  aefs  to  be  uncondhutional,  the  fir  ft  and 
mod  obvious  proceeding  on  the  fubjefi,  did  not  undertake  10 
point  out  to  the  other  dates,  a  choice  among  the  farther 


(  5*  ) 

mrafares  that  might  become  neceflary  and  proper;  the  referv^ 
y/hi  iot  be  mifconllrued  by  liberal  minds,  into  any  culpable 
imputation. 

Thefe  obfervations  appear  to  form  a  fatisfa&ory  reply,  to 
•every  objection  which  is  not  founded  on  a  mifconception  of 
the  terms,  employed  in  the  refolutions.  !  here  is  one  other 
however,  which  rnay  be  of  too  much  importance  not  to  bs 
added.  It  cannot  be  forgotten,  that  among  the  arguments 
addreffed  to  thofe,  who,  apprehended  danger  to  liberty,  from 
the  eHabiifhment  of  the  general  government  over  fo  great  a 
country;  the  appeal  was  emphatically  made  to  the  interme¬ 
diate  exigence  of  the  Hate  governments,  between  the  people 
and  that  government,  to  the  vigilance  vfiih  which  they  would 
defery  the  fir  It  fymptoms  of  ufurpation,  and  to  the  promp¬ 
titude  with  which  they  would  found  the  alarm  to  the  public. 
rJ  his  argument  was  probably  not  without  its  effect ;  and  if  it 
xvas  a  proper  one,  then,  to  recommend  the  eftablifhment  of 
the  ConHitution  ;  it  mult  be  a  proper  one  now,  to  affiH  in  its 
interpretation. 

The  only  part  of  the  two  concluding  refolutions,  that 
remains  to  be  noticed,  is  the  repetition  in  the  firH,  of  that 
warm  a  fie  61  ion  to  the  union  and  its  members,  and  of  that 


Scrupulous  fidelity  to  the  ConHitution  which  have  been  in¬ 
variably  felt  byjthe  people  of  this  Hate.  As  the  proceedings 
were  introduced  with  thefe  fentiments,  they  could  not  be 
more  properly  clofed,  than  in  the  fame  manner.  Should 
there  be  any  fo  far  milled,  as  to  call  in  queflion  the  fincerity 
ef  thefe  profeffions,  whatever  regret  may  be  excited  by  the 
error,  the  General  Affembly  cannot  defeend  into  a  difeuffion 
of  it.  Thofe  who  have  liflened  to  the  fuggeftion,  can  only 
be  left  to  their  own  recollection,  of  the  part  which  this  Hat'S 
has  borne  in  the  eHabiifhment  of  our  national  independence  ; 
in  the  eHabiifhment  of  our  national  ConHitution 4  and  in 
maintaining,  under  it,  the  authority  and  laws  of  the  union, 
without  a  fingle  exception  of  internal  refinance  or  commotion. 
By  recurring  to  thefe  faCls,  they  will  be  able  to  convince 
themfelves,  that  the  reprefentatives  of  the  people  of  Virginia 
muH  be  above  the  neceility  of  oppofing  any  other  fhield  to 
attacks  on  their  national  patriotifm,  than  their  own  con- 
feioufnefs  and  the  juHice  of  an  enlightened  public  ;  who  will 
perceive  in  the  refolutions  themfelves,  the  Hrongelt  evidence 
of  attachment  both  to  the  ConHitution  and  to  the  union, 
iince  it  is  only  by  maintaining  the  different  governments  and 
departments  within  their  refpe&ive  limits,  that  the  blcfiangs 
of  either  can  be  perpetuated. 

The  extenfive  view  of  the  fubjecl  thus  taken  by  the  coegr 


(  53  ) 

»  ~  \ 

m'ittee,  has  led  them  to  report  to  the  houfe,  as  the  refult  of 
the  whole,  the  following  refolution. 

Rcfelved ,  That  the  General  Aflembly,  having  carefully 
ami  refpehifully  attended  to  the  proceedings  of  a  number  of 
the  hates,  in  anfwer  to  their  refolutions  of  December  21, 
1798,  and  having  accurately  and  fully  re-examined  and  re- 
eonfidered  the  latter,  find  it  to  be  their  indifpenfable  duty  to 
adhere  to  the  fame,  as  founded  in  truth,  as  confonant  with 
the  ConfUtution,  and  as  conducive  to  its  preservation  ;  and 
more  efpecially  to  be  their  duty,  to  renew,  as  they  do  hereby 
fenew,  their  proteft  againlt  “  the  alien  and  fedition  a£ts/a 
as  palpable  and  alarming  infrahtions  of  the  Confutation, 


VIRGIN  I  A. 

IN  THE  HOUSE  OF  DELEGATES, 

Friday,  January  10,  1800. 

The  Houfe,  according  to  the  order  of  the  day,  refolved 
if  ft  If  into  a  committee  of  the  whole  Houfe,  on  the  flare  of 
the  commonwealth,  and  after  fome  time  Spent  therein.  Mr, 
Speaker  refumed  the  chair,  and  Mr.  IV.tcr  johnfton  reported, 
that  the  committee  of  the  whole  Houfe  had,  according  to 
order,  had  the  fame  under  their  confideration,  and  had  agreed 
upon  the  following,  “  Inftrudtions  from  the  General  Alfem- 
bly  of  Virginia,  to  Stephens  Fhompfen  Mafoti  and  Wilfon  Cary 
Nicholas ,  Senators  from  the  flate  of  Virginia  in  the  Congrefs 
of  the  United  States.'1 

The  General  Aflembly  of  the  commonweal tli  of  Virginia, 
though  they  entertain  no  doubt  of  your  punctual  performance 
ol  your  duty,  or  of  your  faithful  adherence  to  the  great  prin¬ 
ciples  of  confiitutional  law,  and  national  policy,  deem  it  in¬ 
cumbent  on  them,  to  commuicate  their  opinions,  formed  af¬ 
ter  the  moll  mature  deliberation,  on  certain  fubjedts  eflen- 
tialiy  connected,  as  they  folemnly  believe,  with  the  deareft 
rights,  and  mod  important  interefts  of  the  people* 

l  he  General  Aflembly  of  Virginia  will  not  now  enter 
into  a  minute  detail  of  all  the  facts  and  reafonings,  which 


(  53  ) 


juflifv  and  require  the  inftrudlions  hereto  fubjoined.  They 
cannot  however  lorbear  to  remind  you,  of  fome  facts  and 
obfervations,  which  they  deem  too  expreffive  and  important 
to  be  pa  fled  over  in  fiience.  They  had  indulged  a  hope, 
when  there  was  a  profpedl  of  an  accommodation  of  differ¬ 
ences  with  the  French  Republic,  or,  if  even  the  exifting 
million  ihould  not  terminate  in  that  definable  event,  when 
all  the  belligerent  nations  of  Europe  are  too  much  occupied 
with  European  concerns,  to  meditate  an  invafion  of  the 
United  States  ;  that  the  people  would  have  been  relieved 
from  the  evils  and  expences  incident  to  a  military  eftabliffi- 
ment,  fuch  as  that  authorized  by  the  fifth  C’ongrefs  :  But  it 
has  been  with  the  mod  painful  emotions  that  they  have  feen, 
at  the  opening  of  the  prefent  feffion  of  Congrefs,  a  total  dif- 
appointment  in  this  juft  and  pleafmg  expectation.  The  fol¬ 
lowing  intimation  is  contained  in  the  Speech  of  the  Prefident, 
and  approved  in  the  anfwers  of  the  two  houfes  of  Congrefs  : 

The  refult  of  the  million  to  France  is  yet  uncertain  :  but 
however  it  may  terminate,  a  fleady  perfeverance  in  a  fiyftem 
of  national  defence,  commenfurate  with  our  refources  and 
the  fituation  of  the  United  States,  is  an  obvious  dictate  of 
wifdom.”  This  recommendation  if  carried  into  practice 
would  materially  leflen  the  advantages  which  would  natu¬ 
rally  refult  from  an  accommodation  with  the  French  Repub¬ 
lic,  the  mod  important  of  which  would  be  a  relief  from  the 
evils  incident  to  a  preparation  for  a  rupture  ;  and  ieems  to 
eftablifh  a  pofition  never  before  officially  advanced  in  the 
United  States  —  that  war  in  Europe  is  of  itfelf  a  fufficient 
caufe  for  raffing  a  Handing  army  here,  equal  at  leaft  to  the 
prefent  military  eftabliffiment.  The  experience  of  all  ages 
has  ffiewn,  that  the  refpite  from  wars  among  the  European 
nations  is  too  ffiort  to  juftify  difbanding  an  exifting  army 
and  raffing  another  during  the  intervals  of  peace,  as  a  pre¬ 
paration  for  the  next  rupture  ;  and, of  courie,  if  European 
wars  be  a  fufficient  cauie  for  raifing  military  eftablifhments 
here,  a  perpetual  Handing  army  would  be  the  certain  confe- 
ouence  of  the  recommendation.  It  cannot  have  efcaped 
your  notice,  that  the  prefent  war  in  Europe  has  not  hitherto 
been  deemed  a  fufficient  caufe  for  increasing  the  military  ef- 
tablifhinent  of  the  United  States.  So  far  from  it,  that  dur¬ 
ing  the  exiftence  of  the  war,  the  former  eftabliffiment  was  ac¬ 
tually  reduced.  It  is  equally  notorious,  that  the  only  motive 
avowed  for  augmenting  the  military  force,  arofe  from  tne 
apprehenfion  of  an  actual  invafion  from  France;  and  tne 
fame  law  which  gave  rife  to  the  army,  contains  a  pioviuon 
for  difbanding  it,  upon  an  accommodation  with  that  Repub- 


(  54  ) 


Tic.  It  cannot  therefore  but:  produce  much  concern,  that 
notwithstanding  the  exifttug  profpetl  of  accommodation,  it 
fhould  not  only  be  confidered  as  neceflary  to  go  on  with  the 
irnmenfe  expence  of  fuch  an  eftablifiiment,  but  that  it  fhould 
be  deemed  expedient  to  perfevere  in  a  fyftem  of  defence 
■commenfurate  with  the  refources  and  fituation  of  the  United 
States,  even  in  the  event  of  a  fuccelsiul  termination  of  the 
pacific  million,  and  a  reftoration  of  that  ftate  of  things  which 
preceded  the  crifis  which  was  fuppofed  by  Congrefs  to  re¬ 
quire  fo  great  an  augmentation  of  the  mii'tary  force.  Al¬ 
though  the  constitution  fubmits  the  rich':  of  railing  armies  to 
•the  diferetion  of  Congrcfs,  yet,  it  evidently  contemplated  the 
militia  as  the  great  bulwark  of  national  defence  as  well,  to 
ufe  the  language  of  the  conftitution,  do  renel  invaftotts^  as  to 
execute  the  laws  of  the  union  and  fipprefs  infurreftims  and  con¬ 
templated  the  right  of  railing  armies  for  prefting  and  extra¬ 
ordinary  emergencies.  That  the  militia,  except  in  fuch 
emergencies,  is  the  only  fafe  and  adequate  defence  of  the 
nation,  is  a  political  axiom  hitherto  held  facred  in  the  United 
States.  This  is  not  only  the  obvious  meaning  of  the  confti- 
tution,  but  is  ftiil  more  ftrongly  evidenced  by  the  pradlical 
conftrucHon  thereof  under  the  former  admkriltrai  ion,  as  wkl 
appear  by  reviewing  its  proceedings  for  feverai  fucceftive 
years  after  the  government  was  put  into  operation.  Shortly 
after  that  event,  the  firlt  Prefident,  in  his  Speech  on  the  8th 
of  January  179 o,  called  the  attention  of  Congrefs,  to  the 
great  bufmefs  of  providing  for  the  national  defence,  in  the 
following  word's  :  u  A  free  people  ought  not  only  to  be 
armed,  bat  disciplined,  to  which  end,  an  uniform  and  well 
vligefted  plants  requifite,”  Adtirag  under  the  fame  imnref- 
fion  in  his  Ipeech  on  the  25th  October  1791,  he  again  re- 
i  boded  Congrefs  of  the  militia,  as  the  great  depolirory  of 
national  force  £  fpeaking  of  the  feveral  objedts  referred  to 
toe  confideratidn  of  Congrefs,  in  referring  to  the  militia,  hs 
ooferves  :  <c  The  fir iT  is  certainly  an  object  of  primary  im¬ 
portance,  whether  viewed  in  reference  to  the  national  fecu- 
rity,  or  to  the  fatisfadtion  of  the  community,  or  to  the  pre- 
fervation  of  ord,er  ;  in  connedtion  with  this,  the  eftablifhment 
or  competent  magazines  and  arfenals,  and  the  fortifications, 
naturally  prelent  themfelves  to  confideration.  The  fafety  of 
the  United  States,  under  divine  protedlion,  ought  to  rell  on 
tlie  baiis  of  fyftem  a  tic  and  folid  arrangements,  expoled  as 
little  as  poffibie  to  the  hazard  of  fortuitous  circumftances.” 

i.  hefe  recommendations  being  confidered  as  relating  ex- 
clufively  to  the  militia,  gave  rife  to  a  law  (more  effedfcually  to 
provide  for  the  national  defence,  bv  eftabli firing  an  uniform 


(  51  } 

militia  throughout  the  United  States),  The  Prefident  ag-a :**. 
recurring  to  the  militia  as  the  fafe  and  adequate  defence  o£ 
the  nation,  in  his  Speech  on  the  3d  of  December  1703,  after 
fpeakitig  of  the  neceility  of  procuring  arms  and  other  military 
apparatus,  emphatically  obicrves :  tc  Nor  can  fuch  arrange- 
meats  with  fuch  ebjecds,  be  expofed  to  tlie  cenfure  or  jea- 
loufy  of  the  warmed  friends  of  republican  government. 
T  vy  are  incapable  of  abufe  in  the  hands  of  a  militia,  who 
ought  to  po fiefs  a  pride  in  being  the  depofitory  of  the  force 
of  the  republic  and  may  he  trained  to  a  degree  of  energy- 
equal  to  evt  ry  military  exigency  of  the  United  States.  But 
ir  is  an  enquiry  which  cannot  be  too  folemnly  purfued^ 
whether  the  aci  has  organized  them  lb  as  to  produce  their 
full  eff  .Td’  And  again,  after  the  militia  had  demonftrated 
th  ir  efficacy  in  promptly  marching  to  fupprefs  an  oppofition, 
to  the  laws  in  Pennsylvania,  on  the  19th  of  November 
1794  ;  in  ins  Speech  the  Prefident  observes  :  u  The  deviling 
and  eitabliffiing  a  well  regulated  militia,  would  be  a  genuine 
fource  of  Legiflative  honour,  and  a  perfect  title  ro  public 
gratitude,  i  therefore  entertain  a  hope,  that  the  prefect  fef- 
hon  will  not  pafs,  without  carrying  to  its  full  energy,  the 
power  of  organizing,  arming  and  difeiplining  the  militia, 
and  thus  providing,  in  the  language  of  the  Conllitution,  for 
calling  them  forth,  to  execute  the  laws  of  the  union,  fupprefs 
infurreclions  and  repel  invasions;  as  auxiliary  to  the  hate  of 
our  defence,  to  which  Congress  can  never  too  frequently 
recur,  they  will  not  omit  to  enquire  whether  the  fortifica¬ 
tions  which  have  been  already  Itcenfed  by  law,  be  coalmen- 
furate  with  our  exigencies.” 

Thefe  quotations4  require  no  illu fixation.  They  demon- 
{Irate  the  principle  contended  for  by  the  General  Afiembly. 
Until  the  fifth  Congrefs  this  principle  appears  to  have  been 
duly  refpecled.  It  was  then  materially  varied  by  the  fub- 
flitution  of  a  mi  itary  eflabliffiment,  and  by  volunteer  corps, 
officered  by  the  Prefident  and  not  by  the  dates,  as  the  Con- 
flitution  requires  that  the  militia  ffiould  be  ;  at  the  fame  time 
refilling  to  arm  and  equip  any  portion  of  the  militia  for  the 
purpoies  of  defence. 

The  folicitude  of  the  Virginia  Aflembly  for  difbanding  the 
army  and  rei  Slating  the  great  Con ftitutional  principle  of 
national  defence,  is  greatly  increafed  by  referring  to  the 
enormous  funs  appropriated  for  fupporting  the  army  and 
navy.  Du.ing  the  Jaft  year,  whilft  money  was  procured  at 
eight  per  centum,  the  appropriations  for  the  fupport  ol  the 
army  alone  amounted  to  4,200.000  dollars — ior  fortifications 
7,00,000 — for  the  navy  4,350,000— amounting  in  the  whole 


(  5«  ) 


to  9,250,000 — excfufively  of  a  great  and  unascertained  fum 
of  voluntary  fubfcriptions  for  building  and  equipping  veflels 
cf  war,  for  which  the  fubfcribers  receive  an  intereft  at  fix 
per  centum — Thus  impofing  an  annual  debt,  or  an  annual 
tax,  upon  the  people,  of  nearly  two  dollars  for  every  indi¬ 
vidual  throughout  tne  United  States,  to  fay  nothing  of  the 
moral  and  political  evils  incident  to  a  handing  army,  and 
force  of  which  are  already  developing  themfelves  in  the 
United  States.  Confidering  the  great  diftance  of  the  United 
States  from  the  powerful  nations  of  Europe,  the  natural 
ilrength  of  the  country,  the  fpirit  of  the  people,  and  the  fate 
of  one  invading  experiment,  made,  at  a  time  and  under  cir- 
cumftances  infinitely  unfavourable  to  the  United  States, 
compared  with  their  prefent  {filiation  ;  the  General  AiTem- 
blv  are  perfuaded,  that  as  long  as  the  nations  of  Europe 
continue  at  war  with  each  other  no  formidable  invafion  is 
to  be  apprehended  at  all  *,  nor  a  fudden  and  formidable  in¬ 
vafion  at  any  time.  Under  tills  profpedd  of  tilings,  the 
General  AfTcmbly  hold  it  as  the  dictate  of  true  policy  in  the 
Federal  Government,  to  hufband  the  public  refources,  to 
arrange  and  prepare  the  militia,  and  to  cultivate  harmony, 
by  removing  as  far  as  poffible  caufes  of  jealoufy  and  d if— 
approbation.  With  thefe  advantages,  it  cannot  be  doubted 
that  the  United  States  would  be  in  a  better  pofture  for  fac¬ 
ing  any  danger  that  can  be  ferioufiy  apprehended,  than  can 
be  given  them  by  the  prefent  military  eftablifhmCnt,  accom¬ 
panied  with  the  anticipation  of  refources  and  the  accumu¬ 
lation  of  public  debts  and  taxes,  infcparable  therefrom. 

In  reviewing  the  meafures  adopted  by  the  5th  Congrefs, 
the  General  fiembly  cannot  overlook,  the  act  fufpending  all 
commercial  intereburfe,  with  the  French  dominions*  How¬ 
ever  ready  the  General  Afiemblv  and  their  ccnllituents  may 
be,  to  bear  w  ith  cheerfulnefs,  their  full  fliart  of  all  necefiary 
burdens,  and  to  be  among  the  foremoft,  in  making  all  ne- 
ceiTary  facrifices  *,  they  cannot  be  infenfible,  to  fome  of  the 
effects  ot  this  mealure,  which  prefs  with  peculiar  weight  on 
them,  at  the  fame  time  that  they  muft  be,  in  fome  degree, 
felt  by  every  part  of  the  United  States. 

1  he  article  of  tobacco,  as  you  well  know,  conftitutes  a 
principal  ftaple,  in  the  exports  of  this  Bate.  For  feveral 
years  pair.,  it  has  been  an  increafing  one.  France  and  the 
markets  fuppiied,  or  that  could  be  fupplied,  through  her, 
coniume  a  very  great  proportion  of  all  the  tobacco  made  in 
the  United  Sates.  Great  Britain  is  fuppofed  to  coniume  not 
more  tnan  ten  or  twelve  thousand  hogfheads.  rl  he  confe- 
quence  of  pafiing  this  prohibitory  ad!,  cutting  eft  one  part 


(•  si  *' 

ci  the  continental  market,  In  Europe,  whilff  the  Britifh  fteet, 
imder  the  pretext  of  blockades,  had  cut  off  another,  has  been 
to  throw  a  1  mo  ft  the  whole  of  this  great  and  valuable  ftaple 
into  the  ports  of  Great  Britain  ;  from  which,  as  a  belligerent 
country,  re-exportation  to  other  markets,  muff  be  made  with 
great  difficulty,  riik  and  charges,  whilff  the  monopoly  thus 
thrown  into  a  Angle  market,  has  had  the  natural  effect  of 
reducing  the  price  of  the  article  far  below  the  ufual  ftandard* 
at  the  very  time,  when,  within  the  prohibited  markets,  it 
would  have  fold  at  a  rate,  (till  more  above  the  ufual  prices. 
At  the  time  of  paffing  the  law,  the  average  price  of  tobacco 
in  Virginia  was  about  ten  dollars.  At  prefent  the  price  is 
not  more  than  about  three  dollars  thirty-three  cents  ;  and. 
although  other  circumftances  may  poffihiy,  in  forne  degree, 
have  contributed  to  produce  this  immenfe  difference,  yet  it 
cannot  be  doubted,  that  the  a£l  in  queffion  has  been  the 
principal  caufe. 

From  this  ftate  of  things,  it  neceffarily  happens,  that  the 
merchants  who  were  engaged  in  this  branch  of  trade,  have 
been  molt  extenfively  injured  ;  the  planter  receives  not  more 
than  a  third  of  the  value  of  his  labour,  bellowed  on  the  arti¬ 
cle  of  tobacco  *,  the  ability  to  pay  the  xequifite  taxes,  is  pro- 
portionably  diminifhed,  and  the  revenue  from  imports  likely 
to  be  reduced,  by  the  reduction  of  the  value  of  the  exports* 

On  this  cOnfideration,  we  think  it  proper  to  inftruct  you,  to 
jfolicit  a  revifion  of  the  a£l  aforefaid  ;  which  we  cannot,  from 
any  information  known  to  the  public,  perceive  to  be  in  any 
manner  conducive,  in  its  operation,  to  the  national  interefu 
Nor  do  we  perceive,  that  any  inconvenience  can  refult  from 
jfuch  a  meafure,  to  the  exifling  poffure  of  things  between  the 
United  States  and  the  French  Republic.  If  it  ffiould  have 
iany  influence,  on  the  negotiations  depending,  it  will  proba¬ 
bly  be  of  a  conciliatory  rather  than  of  a  difadvantageou9  na¬ 
ture  ;  and  fhould  the  negociations  not  iflue  in  the  defired 
accommodation,  this  branch  of  the  arrangements,  that  may 
then  become  proper,  will  be  fubjedf  to  the  fame  diicretion 
which  will  decide  on  every  other. 

With  refpedt  to  the  navy,  it  may  be  proper  to  remind  you 
that  whatever  may  be  the  propofed  object  of  its  eftablifh- 
rnent,  or  whatever  may  be  the  prolpedl  of  temporary  advan¬ 
tages  refulting  therefrom,  it  is  demonftrated  by  the  experi¬ 
ence  of  all  nations,  who  have  adventured  far  into  naval  po*» 
licy,  that  fuch  profpedl  is  ultimately  delutive  j  and  that  a 
navy  has  ever  in  pradlice  been  known  more  as  an  inffrument 
of  power,  a  fource  of  expence,  and  an  oegafion  of  colliflens 
and  wars  with  other  nations,  than  an  inffrument  of 


(  ) 


fence,  of  economy,  or  of  protection  to  commerce.  Nor  is 
there  any  nation,  in  the  judgment  of  the  General  Aflembly* 
to  whofe  circumftances  this  remark  is  more  applicable  than 
to  the  United  States. 

The  General  Aflembly  of  Virginia,  would  confider  them-, 
felves  unfaithful  to  the  trufts  repofed  in  them,  were  they  to 
remain  filent,  whilfl  a  doctrine  has  been  publicly  advanced, 
novel  in  its  principle,  and  tremendous  in  its  confequences. 
That  the  common  law  of  England  is  in  force  under  the  go¬ 
vernment  of  the  United  States.  It  is  not  at  this  time  pro- 
p„ofed  to  e^pofe  at  large  the  monftrous  pretenfions  re  fulling 
from  the  adoption  of  this  principle.  It  ought  never  how¬ 
ever  to  be  forgotten,  and  can  never  be  too  often  repeated, 
that  it  opens  a  new  tribunal  for  the  trial  of  crimes  never 
contemplated  by  the  federal  compact.  It  opens  a  new  code- 
of  fanguinary  criminal  law,  both  obfolete  and  unknown,  and 
either  wholly  rejected.  or  effentially  modified  in  almoft  all  its. 
parts  by  ftate  inftimtions.  It  arrefts  or  fuperfedes  ftate  ju- 
rlfcliCtion,  and  innovates  upon  ftate  laws.  It  fubjeCts  the- 
citizen  to  punifhment  according  to  the  judiciary  will,  when 
he  is  left  in  ignorance  of  what  this  law  enjoins  as  a  duty,  or 
prohibits  as  a  crime.  It  aftumes  a  range  of  jurifdiCtion  for 
the  federal,  courts,  which  defies  limitation  or  definition.  la 
fhort  it  is  believed,  that  the  advocates  for  the  principle  would 
tbemfelves  b.e  loft  in  an  attempt,  to  apply  it  to  the  exifting 
in  dilutions  of  federal  and  ftate  courts,  by  feparating  with/ 
precifion  their  judiciary  rights,  and  thus  preventing  the 
conftant  and  mifehievous  interference  of  rival  jurifdiCtions. 

With  refpeCt  to  the  Alien  and  Sedition  laws,  it  is  at  p re¬ 
fen  t  only  deemed  necefl'ary  to  refer  you  to  the  various  dif- 
cuftions  upon  thofe  fubjeCts,  which  in  the  opinion  of  the 
General  Aflembly  of  Virginia,  clearly  demonftrate  the  un- 
conftitucionality  of  their  principles ;  and  e3tperience  has  aU, 
ready  fufficiently  fhown.,  tlte  mifehiefs  of  their  operation. 

The  General  Aflembly  of  Virginia,  confiding  in  your  in¬ 
telligence  and  zeal,  truft  that  thefe  principles  will  be,  on  all? 
proper  occafions,  illuftrated  and  fupported  by  you,  with, 
that  candour,  moderation  and  ftrmnefs,  without  which,  the 
friends  of  liberty  and  truth,  however  fincere,  cannot  render 
elfential  fervice  to  the  caufe  in  which  they  are  engaged. 

Deeply  imprefted  with  thefe  opinions,  the  General  Af- 
fembly  of  Virginia,  inftruCt  the  Senators  and  requeft  the  Re-, 
prefentatives  from  this  ftate  in  Congrefs,  to  ufe  their  belt 
efforts — 

l •  To  procure  a  reduction  of  the  army,  within  the  nar- 
rovyeft  limits  compatible  with  the  protection  of  the  forts,  anti 


(  59  ) 

the  prefervation  of  the  arfenals  maintained  by  the  United 
States,  einlefs  fuch  a  meafure  lliall  be  forbidden  by  Infor¬ 
mation  not  known  to  the  public. 

2.  To  prevent  any  augmentation  of  the  navy,  and  to  pro¬ 
mote  any  proportion  for  reducing  it,  as  circumftances  will 
permit,  within  the  narrowed:  limits  compatible  with  the  pro¬ 
tection  of  the  fea  coafts,  ports  and  harbours  of  the  United 
States,  and  of  confequence  a  proportionate  reduction  of  the 
taxes. 

,3.  To  oppofe  the  paffing  of  any  law  founded  on,  or  re¬ 
cognizing  the  principle  lately  advanced,  “  that  the  common 
law  of  England  is  in  force  under  the  government  of  the 
United  States,’’  excepting  from  fuch  oppofition  fuch  parti¬ 
cular  parts  of  the  common  law  as  may  have  a  fandion  from 
the  Conftitution,  fo  far  as  they  are  necefTarily  comprehended 
in  the  technical  phrafes  which  exprefs  the  powers  delegated 
tG  the  government ;  and  excepting  alfo  fuch  other  parts 
thereof  as  may  be  adopted  by  Congrefs  as  neceflary  and  pro¬ 
per  for  carrying  into  execution  the  power  exprefsly  dele¬ 
gated. 

4.  To  procure  a  repeal  of  the  adls  of  Congrefs  com¬ 
monly  called  the  Alien  and  Sedition 


HOUSE  OF  DELEGATES. 

Saturday ,  January  ii,  1800. 

The  Houfe,  according  to  order,  proceeded  to  confider  the 
InlfrucHons  from  the  General  Affembly  of  Virginia,  to  Ste¬ 
phens  Thompfon  Mafon,  and  Wilfon  Cary  Nicholas,  Sena¬ 
tors  from  the  (late  of  Virginia,  in  the  Senate  of  the  United 
States, 

The  queftion  being  then  put,  th$t  the  inftrudbions,  as 
amended,  do  pafs,  they  pafled  in  the  affirmative  j  Ayes 
iq 2,  Noes  49. 


i 


JAMES  CAREY, 

No.  7,  SOUTH  FRONT-STREET, 
Has  lately  publiflied  the  following 

ORIGINAL  PRODUCTIONS: 


I. 

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THE  ENGLISH  CONSTITUTION. 

'a  true  copy,  from  the  original, 

IN  THE  POSSESSION  OF  WILLIAM  PITT  &  CO. 

•f 

By  TIMOTHY  TELLTRUTH. 

C(  NOT  THE  FORM  ATI  ON  OF  LANGUAGES  ;  NOT  THE 
“  WHOLE  ART  OF  NAVIGATION  AND  SHIP-BUILDING , 
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%f  STANDING  THAN  THIS  SYSTEM  OF  GOVERNMENTS* 

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— Who  are  indefatigabiy  engaged  in  deftroying  the  Re¬ 
ligion  and  Government  of  the  United  States ;  under  a  feigned 
regard  for  their  fifety — and  under  an  impious  abufe  of 
true  religion. 

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Afi 


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Jellifying  the  condutWof  the  Citizens  of  Kentucky,  as 
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1 


